Can parties avoid Rule 26 disclosure requirements by claiming impeachment? Johansen v. Johansen Explained

In Johansen v. Johansen, the Utah Court of Appeals clarified the narrow scope of Rule 26’s impeachment exception, rejecting a trial court’s ruling that allowed a party to present his entire case without proper initial disclosures.

Background and Facts

Colten Johansen petitioned to terminate alimony, alleging his ex-wife Kathy was cohabitating. Despite Rule 26 requiring initial disclosures within 14 days of Kathy’s answer, Colten never filed them. Instead, he provided pretrial disclosures just 28 days before trial. When Kathy moved to dismiss for this violation, the trial court denied the motion, finding the failure harmless because Colten planned to call Kathy as his first witness and use his other witnesses solely for impeachment.

Key Legal Issues

The case presented two critical questions: (1) whether failing to disclose an opposing party as a case-in-chief witness can be harmless, and (2) whether Rule 26’s “solely for impeachment” exception allows parties to avoid disclosing witnesses and evidence used in their case-in-chief if that evidence impeaches testimony.

Court’s Analysis and Holding

The Court of Appeals reversed on both issues. First, failing to disclose that an opposing party will be called as a witness is not harmless—such disclosure could fundamentally alter the opposing party’s trial strategy and decision whether to retain counsel. Second, the court held that the impeachment exception in Rule 26(a)(1)(A)(i) applies only to individuals with discoverable information, not to witnesses called in a party’s case-in-chief under Rule 26(a)(1)(A)(ii) or documents under Rule 26(a)(1)(B). The plain language of the rule demonstrates the drafters carefully limited where the impeachment exception applies.

Practice Implications

This decision reinforces that Rule 26’s disclosure requirements cannot be circumvented through creative interpretations of the impeachment exception. Practitioners must disclose all case-in-chief witnesses and evidence in initial disclosures, regardless of whether that evidence will also serve an impeachment function. The court warned that parties who “play fast and loose” with discovery rules risk losing their entire case.