Hawaii Civil Discovery Rules and Procedures

Jurisdiction: Hawaii

Hawaii Civil Discovery Rules and Procedures

Hawaii's discovery rules are governed by the Hawaii Rules of Civil Procedure (Haw. R. Civ. P.), which closely parallel the Federal Rules of Civil Procedure but contain several Hawaii-specific modifications and procedures that practitioners must understand and follow carefully.

Mandatory Initial Disclosures

Yes, Hawaii requires initial disclosures. Under Haw. R. Civ. P. Rule 26(a)(1), unless otherwise stipulated or ordered by the court, parties must make initial disclosures within 14 days after the parties have conferred as required by Rule 26(f).

Required initial disclosures must include:

  • The name, address, and telephone number of each individual likely to have discoverable information — unless the use would be solely for impeachment — along with the subjects of that information

  • A copy of, or a description by category and location of, all documents, electronically stored information (ESI), and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment

  • A computation of each category of damages claimed, making available for inspection and copying as under Rule 34 the documents or other information on which each computation is based

  • For inspection or testing under Rule 34, insurance agreements under which an insurance company may be liable to satisfy all or part of a judgment

    • These disclosures must be made without awaiting a discovery request and must be signed by the attorney or party, certifying that to the best of their knowledge, information, and belief, the disclosure is complete and correct as of the time made.

    Failure to disclose materials timely can result in exclusion of that evidence at trial unless the failure was substantially justified or harmless. See Haw. R. Civ. P. Rule 37(c).

    Interrogatories

    Interrogatory Limits:

    Under Haw. R. Civ. P. Rule 33(a)(1), a party may serve not more than 25 interrogatories, including all discrete subparts. However, this limit may be increased by written stipulation of the parties or by court order. Many jurisdictions interpret "discrete subparts" differently, so practitioners should be precise in drafting to avoid disputes over counting.

    Format Requirements:

  • Each interrogatory must be separately numbered and set forth separately

  • Interrogatories must conform to the formatting rules in Rule 33(a)(2)

  • Complex interrogatories that seek information in multiple categories should be carefully structured to avoid exceeding the numerical limit

    • Time to Respond:

    A party has 30 days after service to respond to interrogatories, unless a different time is stipulated or ordered by the court. Extensions are common and should be documented in writing.

    Objections:

    A responding party must state with specificity the grounds for any objection to an interrogatory. Boilerplate or general objections—such as "overly broad" without explanation—are disfavored. Under Haw. R. Civ. P. Rule 33(a)(4), objections must be justified and precise. If an interrogatory is objectionable only in part, the party must answer the remainder.

    Common Objections in Hawaii:

  • Interrogatories calling for legal conclusions (may be objectionable but increasingly disfavored under modern discovery rules)

  • Requests for information protected by attorney-client privilege or work product doctrine

  • Interrogatories seeking information equally available to the requesting party

  • Overly burdensome requests that would require disproportionate effort

    • Requests for Production of Documents

    Scope:

    Under Haw. R. Civ. P. Rule 34, a party may serve a request to produce any designated documents, ESI, or tangible things in the possession, custody, or control of the other party. The scope is broad and includes not only documents the responding party has created but also those it possesses or controls.

    Format Requirements:

  • Requests must describe with reasonable particularity each item or category of items

  • The request must specify a reasonable place, time, and manner of inspection and copying

  • A request may include requests for ESI in a specified format; if the requesting party does not specify a format, the responding party must produce ESI in the form in which it is ordinarily maintained or in a form that is reasonably usable

    • Time to Respond:

    A party has 30 days after service to respond to a request for production, unless otherwise stipulated or ordered.

    ESI (Electronically Stored Information) Considerations:

    Hawaii's discovery rules under Rule 34(b) specifically address ESI. Key provisions include:

  • A party must produce ESI in the form in which it is ordinarily maintained or in a form that is reasonably usable

  • If the responding party cannot produce ESI in the requested form, it must state the form in which it will produce the ESI

  • The responding party is not required to produce metadata unless the requesting party specifically requests it

  • The responding party is not required to restore or reconstruct destroyed ESI unless the requesting party makes a specific request and the court orders restoration

  • A party is not required to produce ESI that has been deleted in the ordinary course of business

    • Safe Harbor for Inadvertently Produced Privileged Material:

    Under Haw. R. Civ. P. Rule 26(b)(5)(B), a party that inadvertently sends a privileged document may notify the receiving party, and the receiving party must promptly return or destroy the document upon request without reviewing it or disclosing its contents.

    Requests for Admission

    Numerical Limits:

    Under Haw. R. Civ. P. Rule 36(a), a party may serve requests for admission without a numerical limit. However, courts may limit the number if requests are excessive or burdensome.

    Time to Respond:

    A party has 30 days after service to respond to a request for admission, unless otherwise stipulated or ordered.

    Deemed Admitted Consequences:

    This is a critical procedural point: under Haw. R. Civ. P. Rule 36(a)(3), any matter not admitted is deemed admitted unless the responding party:

  • Serves a written answer or objection within the 30-day period, or

  • Obtains an extension or stipulation extending the time

    • This strict default rule means failure to respond results in automatic admission. An admission of fact is conclusive in the lawsuit unless the court permits withdrawal or amendment of the admission under Rule 36(b).

    Grounds for Withdrawal:

    A court may permit withdrawal or amendment of an admission if doing so would serve the interests of justice. However, this requires a motion and court approval, making timely responses essential.

    Depositions

    Numerical Limits:

    Under Haw. R. Civ. P. Rule 30(a)(2), each party is limited to 10 depositions of any persons (including parties and non-parties). This limit may be increased by written stipulation or court order. Notably, separate depositions of the same person (e.g., a subsequent deposition following supplemental information) may implicate this limit.

    Duration Limits:

    Unless otherwise stipulated or ordered, a deposition is limited to one day of 7 hours (Haw. R. Civ. P. Rule 30(d)). The court may extend this time for good cause shown or by stipulation. In complex litigation, extensions are common.

    Notice Requirements:

  • A party seeking to depose another party must provide at least 14 days' notice under Haw. R. Civ. P. Rule 30(b)(1)

  • Notice to a non-party requires a subpoena and must be served at least 14 days before the deposition (see Rule 30(b)(1) and Rule 45)

  • The notice must state the time and place of the deposition and the name and address of any person to be examined

    • Who Can Be Deposed:

  • Any party to the lawsuit

  • Any non-party with knowledge of relevant facts (via subpoena)

  • Current and former employees of parties

  • Expert witnesses (subject to expert discovery rules under Rule 26(b)(4))

    • Use at Trial:

    Depositions may be used at trial for impeachment or to refresh a witness's memory under the Hawaii Rules of Evidence. In some circumstances (such as when a witness is unavailable), a deposition transcript may be admissible as substantive evidence.

    Physical and Mental Examinations

    When Allowed:

    Under Haw. R. Civ. P. Rule 35, a physical or mental examination of a party or a person in the other party's custody or under the other party's legal control may be ordered when:

  • The mental or physical condition of the person is in controversy, AND

  • There is good cause for the examination

    • Good Cause Standard:

    Hawaii courts require a showing of particularized need. The movant must demonstrate that the condition is genuinely in controversy and that the examination is necessary to obtain information that cannot reasonably be obtained through other discovery methods.

    Who Can Request:

    Only the opposing party may request such an examination; the examining party may not unilaterally demand an exam. The request must be made by motion supported by facts demonstrating good cause.

    Requirements:

  • The motion must specify the time, place, manner, conditions, and scope of the examination

  • The person to be examined must be given at least 14 days' notice of the motion

  • The examining physician's report must be disclosed to the examined party upon request

    • Subpoenas for Non-Parties

    How to Issue:

    Under Haw. R. Civ. P. Rule 45, a subpoena is issued by the clerk of court upon request by an attorney or a party. The subpoena must:

  • Command the person to whom it is directed to do one of the following: attend and testify; produce designated documents, ESI, or tangible things; permit inspection of premises; or any combination thereof

  • Be signed by the attorney or party requesting it (not countersigned by the clerk in Hawaii)

    • Geographic Limits:

    A subpoena may require:

  • Attendance within 100 miles of the place where the person resides, is employed, or regularly transacts business (Haw. R. Civ. P. Rule 45(c)(1)(A))

  • Production of documents or inspection of premises anywhere within the state, unless the parties agree otherwise or the court orders otherwise

    • Compliance Requirements:

  • Service must be made by delivering a copy to the person to be subpoenaed (personally, by certified mail, or by other means)

  • Service must be made at least 14 days before the return date (Haw. R. Civ. P. Rule 45(c)(1)(A))

  • The subpoena must include notice of the right to object and information about protective orders (Haw. R. Civ. P. Rule 45(c)(2))

  • A subpoena must state any fees, mileage, and witness fees owed to the recipient

    • Enforcement:

    Failure to comply with a subpoena may result in contempt of court or a motion to compel under Rule 37.

    Expert Discovery

    Disclosure Requirements:

    Under Haw. R. Civ. P. Rule 26(a)(2), a party must disclose any expert witness it intends to call at trial. The disclosure must include:

  • The expert's name, address, and telephone number

  • A statement of the subject matter and substance of the expert's opinions

  • A statement of the facts or data considered by the expert in forming the opinions

  • A statement of any assumptions the expert relied upon

  • A description of the expert's qualifications

  • A list of all publications authored by the expert in the past 10 years

  • A statement of the compensation to be paid for the expert's testimony in the case

  • A complete and detailed written report containing all information listed above

    • Timing:

    Experts must be disclosed at least 90 days before trial, unless otherwise stipulated or ordered. Rebuttal experts must be disclosed at least 30 days before trial.

    Deposing Experts:

    Expert witnesses may be deposed under the standard deposition rules, but Rule 26(b)(4)(C) provides that unless stipulated otherwise or ordered by the court, the expert must provide a detailed written report before deposition. The report requirement is strict and is often enforced by courts.

    Scope of Discovery

    What is Discoverable:

    Under Haw. R. Civ. P. Rule 26(b)(1), parties may discover any information relevant to a claim or defense and proportional to the needs of the case. Information need not be admissible at trial if it is reasonably calculated to lead to the discovery of admissible evidence.

    Relevance Standard:

    Hawaii uses a broad relevance standard—more expansive than the rules of evidence. A matter is relevant if it has any bearing on the outcome of the case or affects the probability of a fact that is of consequence to the litigation.

    Proportionality:

    Rule 26(b)(1) requires that discovery be proportional to the needs of the case, considering:

  • The importance of the issues at stake in the action

  • The amount in controversy

  • The parties' relative access to relevant information

  • The parties' resources

  • Whether the burden or expense of the proposed discovery outweighs its likely benefit

  • The importance of the discovery in resolving the issues

    • Courts may limit discovery that is excessive or unreasonably burdensome.

    Privileges and Work Product

    Attorney-Client Privilege:

    Communications between an attorney and client made for the purpose of obtaining or providing legal advice are privileged under Hawaii law and are not discoverable.

    Work Product Doctrine:

    Under Haw. R. Civ. P. Rule 26(b)(3), materials prepared in anticipation of litigation or for trial by or for a party or its attorney are protected work product and are not discoverable except upon a showing of substantial need and inability to obtain the substantial equivalent without undue hardship.

    Privilege Logs:

    A party asserting privilege or work product protection over documents must provide a privilege log. The log should describe each withheld document with sufficient detail to permit assessment of the privilege claim, including:

  • The document's date

  • The author and recipients

  • The general subject matter

  • The basis for the privilege claim

    • Inadvertent Disclosure:

    If privileged material is inadvertently disclosed, the disclosing party must promptly notify the other party, which must then refrain from examining or using the material or disclosing it until the privilege issue is resolved.

    Meet and Confer Requirements

    Under Haw. R. Civ. P. Rule 26(f), the parties must confer as soon as practicable and in any event at least 21 days before the initial pretrial conference or as ordered by the court. This conference should address:

  • The parties' claims and defenses

  • Disclosure of initial information (including relevant parties and persons with knowledge)

  • The parties' views and claims about discovery

  • Any issues about preserving discoverable information

  • The development and proposed timing of a discovery plan

  • Any other matters important to the orderly development and disposition of the case

    • Meet and Confer Before Filing Motions:

    Before filing a motion to compel disclosure or discovery, Haw. R. Civ. P. Rule 26(f) and general practice rules require the moving party to attempt to resolve the dispute in good faith. The party must make a reasonable effort to obtain a response and must provide the other party an opportunity to cure any deficiency. A certification that the movant has attempted in good faith to obtain the required response must accompany any motion to compel.

    Failure to meet and confer in good faith before filing may result in denial of the motion or other sanctions.

    Discovery Cutoffs

    When Discovery Closes:

    Discovery generally remains open until the date set by the court at the initial pretrial conference. Under Haw. R. Civ. P. Rule 16(b), the court enters a scheduling order that typically includes a discovery deadline. The discovery deadline is usually established in relation to the trial date.

    Standard Timeline:

    While not mandated by rule, many Hawaii courts follow a timeline where discovery closes 60 to 90 days before trial, allowing time for dispositive motions and trial preparation.

    Extensions and Modifications:

    Parties may stipulate in writing to extend discovery deadlines or may seek court approval to modify scheduling orders. Extensions should be sought promptly and documented in writing.

    Protective Orders

    When Granted:

    Under Haw. R. Civ. P. Rule 26(c)(1), a party may seek a protective order to protect a party or person from undue burden or expense resulting from discovery. A protective order may:

  • Forbid the discovery

  • Specify terms and conditions under which discovery may occur

  • Designate that discovery be conducted with no one present except specified persons

  • Require that a trade secret or confidential commercial information not be revealed except to specified persons or in a specified way

  • Require simultaneous filing under seal of any document containing sensitive information

    • Good Cause Standard:

    The movant must show good cause for the protective order. Good cause typically requires demonstrating that disclosure would cause undue burden, expense, or prejudice. Courts balance the need for information against the burden of disclosure.

    Motion Procedure:

    A motion for a protective order must be accompanied by a certification that the movant has in good faith conferred or attempted to confer with the party failing to respond in an effort to obtain the disclosure without court action.

    Motions to Compel

    Procedure:

    Under Haw. R. Civ. P. Rule 37(a), if a party fails to disclose or make a required response to discovery, the discovering party may move for an order compelling disclosure or an adequate response. The motion must include a certification that

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