Effective May 1, 2015

Court rules

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Rule 26.

Effective May 1, 2015

Rule 26. General provisions governing disclosure and discovery.

(a) Disclosure. This rule applies unless changed or supplemented by a rule governing disclosure and

discovery in a practice area.

(a)(1) Initial disclosures. Except in cases exempt under paragraph (a)(3), a party shall, without

waiting for a discovery request, serve on the other parties:

(a)(1)(A) the name and, if known, the address and telephone number of:

(a)(1)(A)(i) each individual likely to have discoverable information supporting its claims or

defenses, unless solely for impeachment, identifying the subjects of the information; and

(a)(1)(A)(ii) each fact witness the party may call in its case-in-chief and, except for an

adverse party, a summary of the expected testimony;

(a)(1)(B) a copy of all documents, data compilations, electronically stored information, and

tangible things in the possession or control of the party that the party may offer in its case-in-

chief, except charts, summaries and demonstrative exhibits that have not yet been prepared and

must be disclosed in accordance with paragraph (a)(5);

(a)(1)(C) a computation of any damages claimed and a copy of all discoverable documents or

evidentiary material on which such computation is based, including materials about the nature

and extent of injuries suffered;

(a)(1)(D) a copy of any agreement under which any person may be liable to satisfy part or all

of a judgment or to indemnify or reimburse for payments made to satisfy the judgment; and

(a)(1)(E) a copy of all documents to which a party refers in its pleadings.

(a)(2) Timing of initial disclosures. The disclosures required by paragraph (a)(1) shall be

served on the other parties:

(a)(2)(A) by the plaintiff within 14 days after filing of the first answer to the complaint; and

(a)(2)(B) by the defendant within 42 days after filing of the first answer to the complaint or

within 28 days after that defendant’s appearance, whichever is later.

(a)(3) Exemptions.

(a)(3)(A) Unless otherwise ordered by the court or agreed to by the parties, the requirements

of paragraph (a)(1) do not apply to actions:

(a)(3)(A)(i) for judicial review of adjudicative proceedings or rule making proceedings of

an administrative agency;

(a)(3)(A)(ii) governed by Rule 65B or Rule 65C;

(a)(3)(A)(iii) to enforce an arbitration award;

(a)(3)(A)(iv) for water rights general adjudication under Title 73, Chapter 4, Determination

of Water Rights.

(a)(3)(B) In an exempt action, the matters subject to disclosure under paragraph (a)(1) are

subject to discovery under paragraph (b).

(a)(4) Expert testimony.

Rule 26.

Effective May 1, 2015

(a)(4)(A) Disclosure of expert testimony. A party shall, without waiting for a discovery

request, serve on the other parties the following information regarding any person who may be

used at trial to present evidence under Rule 702 of the Utah Rules of Evidence and who is

retained or specially employed to provide expert testimony in the case or whose duties as an

employee of the party regularly involve giving expert testimony: (i) the expert’s name and

qualifications, including a list of all publications authored within the preceding 10 years, and a list

of any other cases in which the expert has testified as an expert at trial or by deposition within the

preceding four years, (ii) a brief summary of the opinions to which the witness is expected to

testify, (iii) all data and other information that will be relied upon by the witness in forming those

opinions, and (iv) the compensation to be paid for the witness’s study and testimony.

(a)(4)(B) Limits on expert discovery. Further discovery may be obtained from an expert

witness either by deposition or by written report. A deposition shall not exceed four hours and the

party taking the deposition shall pay the expert’s reasonable hourly fees for attendance at the

deposition. A report shall be signed by the expert and shall contain a complete statement of all

opinions the expert will offer at trial and the basis and reasons for them. Such an expert may not

testify in a party’s case-in-chief concerning any matter not fairly disclosed in the report. The party

offering the expert shall pay the costs for the report.

(a)(4)(C) Timing for expert discovery.

(a)(4)(C)(i) The party who bears the burden of proof on the issue for which expert

testimony is offered shall serve on the other parties the information required by paragraph

(a)(4)(A) within seven days after the close of fact discovery. Within seven days thereafter, the

party opposing the expert may serve notice electing either a deposition of the expert pursuant

to paragraph (a)(4)(B) and Rule 30, or a written report pursuant to paragraph (a)(4)(B). The

deposition shall occur, or the report shall be served on the other parties, within 28 days after

the election is served on the other parties. If no election is served on the other parties, then

no further discovery of the expert shall be permitted.

(a)(4)(C)(ii) The party who does not bear the burden of proof on the issue for which

expert testimony is offered shall serve on the other parties the information required by

paragraph (a)(4)(A) within seven days after the later of (A) the date on which the election

under paragraph (a)(4)(C)(i) is due, or (B) receipt of the written report or the taking of the

expert’s deposition pursuant to paragraph (a)(4)(C)(i). Within seven days thereafter, the party

opposing the expert may serve notice electing either a deposition of the expert pursuant to

paragraph (a)(4)(B) and Rule 30, or a written report pursuant to paragraph (a)(4)(B). The

deposition shall occur, or the report shall be served on the other parties, within 28 days after

the election is served on the other parties. If no election is served on the other parties, then

no further discovery of the expert shall be permitted.

Rule 26.

Effective May 1, 2015

(a)(4)(C)(iii) If the party who bears the burden of proof on an issue wants to designate

rebuttal expert witnesses it shall serve on the other parties the information required by

paragraph (a)(4)(A) within seven days after the later of (A) the date on which the election

under paragraph (a)(4)(C)(ii) is due, or (B) receipt of the written report or the taking of the

expert’s deposition pursuant to paragraph (a)(4)(C)(ii). Within seven days thereafter, the party

opposing the expert may serve notice electing either a deposition of the expert pursuant to

paragraph (a)(4)(B) and Rule 30, or a written report pursuant to paragraph (a)(4)(B). The

deposition shall occur, or the report shall be served on the other parties, within 28 days after

the election is served on the other parties. If no election is served on the other parties, then

no further discovery of the expert shall be permitted.

(a)(4)(D) Multiparty actions. In multiparty actions, all parties opposing the expert must agree

on either a report or a deposition. If all parties opposing the expert do not agree, then further

discovery of the expert may be obtained only by deposition pursuant to paragraph (a)(4)(B) and

Rule 30.

(a)(4)(E) Summary of non-retained expert testimony. If a party intends to present

evidence at trial under Rule 702 of the Utah Rules of Evidence from any person other than an

expert witness who is retained or specially employed to provide testimony in the case or a person

whose duties as an employee of the party regularly involve giving expert testimony, that party

must serve on the other parties a written summary of the facts and opinions to which the witness

is expected to testify in accordance with the deadlines set forth in paragraph (a)(4)(C). A

deposition of such a witness may not exceed four hours.

(a)(5) Pretrial disclosures.

(a)(5)(A) A party shall, without waiting for a discovery request, serve on the other parties:

(a)(5)(A)(i) the name and, if not previously provided, the address and telephone number

of each witness, unless solely for impeachment, separately identifying witnesses the party will

call and witnesses the party may call;

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(a)(5)(A)(ii) the name of witnesses whose testimony is expected to be presented by

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transcript of a deposition and a copy of the transcript with the proposed testimony

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designated; and

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(a)(5)(A)(iii) a copy of each exhibit, including charts, summaries and demonstrative

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exhibits, unless solely for impeachment, separately identifying those which the party will offer

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and those which the party may offer.

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(a)(5)(B) Disclosure required by paragraph (a)(5) shall be served on the other parties at least

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28 days before trial. At least 14 days before trial, a party shall serve and file counter designations

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of deposition testimony, objections and grounds for the objections to the use of a deposition and

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to the admissibility of exhibits. Other than objections under Rules 402 and 403 of the Utah Rules

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of Evidence, objections not listed are waived unless excused by the court for good cause.

Rule 26.

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Effective May 1, 2015

(b) Discovery scope.

(b)(1) In general. Parties may discover any matter, not privileged, which is relevant to the claim

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or defense of any party if the discovery satisfies the standards of proportionality set forth below.

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Privileged matters that are not discoverable or admissible in any proceeding of any kind or character

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include all information in any form provided during and created specifically as part of a request for an

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investigation, the investigation, findings, or conclusions of peer review, care review, or quality

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assurance processes of any organization of health care providers as defined in the Utah Health Care

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Malpractice Act for the purpose of evaluating care provided to reduce morbidity and mortality or to

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improve the quality of medical care, or for the purpose of peer review of the ethics, competence, or

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professional conduct of any health care provider.

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(b)(2) Proportionality. Discovery and discovery requests are proportional if:

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(b)(2)(A) the discovery is reasonable, considering the needs of the case, the amount in

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controversy, the complexity of the case, the parties' resources, the importance of the issues, and

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the importance of the discovery in resolving the issues;

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(b)(2)(B) the likely benefits of the proposed discovery outweigh the burden or expense;

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(b)(2)(C) the discovery is consistent with the overall case management and will further the

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just, speedy and inexpensive determination of the case;

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(b)(2)(D) the discovery is not unreasonably cumulative or duplicative;

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(b)(2)(E) the information cannot be obtained from another source that is more convenient,

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less burdensome or less expensive; and

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(b)(2)(F) the party seeking discovery has not had sufficient opportunity to obtain the

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information by discovery or otherwise, taking into account the parties’ relative access to the

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information.

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(b)(3) Burden. The party seeking discovery always has the burden of showing proportionality and

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relevance. To ensure proportionality, the court may enter orders under Rule 37.

(b)(4) Electronically stored information. A party claiming that electronically stored information

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is not reasonably accessible because of undue burden or cost shall describe the source of the

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electronically stored information, the nature and extent of the burden, the nature of the information not

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provided, and any other information that will enable other parties to evaluate the claim.

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(b)(5) Trial preparation materials. A party may obtain otherwise discoverable documents and

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tangible things prepared in anticipation of litigation or for trial by or for another party or by or for that

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other party's representative (including the party’s attorney, consultant, surety, indemnitor, insurer, or

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agent) only upon a showing that the party seeking discovery has substantial need of the materials

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and that the party is unable without undue hardship to obtain substantially equivalent materials by

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other means. In ordering discovery of such materials, the court shall protect against disclosure of the

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mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of

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a party.

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(b)(6) Statement previously made about the action. A party may obtain without the showing

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required in paragraph (b)(5) a statement concerning the action or its subject matter previously made

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by that party. Upon request, a person not a party may obtain without the required showing a

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statement about the action or its subject matter previously made by that person. If the request is

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refused, the person may move for a court order under Rule 37. A statement previously made is (A) a

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written statement signed or approved by the person making it, or (B) a stenographic, mechanical,

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electronic, or other recording, or a transcription thereof, which is a substantially verbatim recital of an

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oral statement by the person making it and contemporaneously recorded.

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(b)(7) Trial preparation; experts.

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(b)(7)(A) Trial-preparation protection for draft reports or disclosures. Paragraph (b)(5)

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protects drafts of any report or disclosure required under paragraph (a)(4), regardless of the form

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in which the draft is recorded.

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(b)(7)(B) Trial-preparation protection for communications between a party’s attorney

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and expert witnesses. Paragraph (b)(5) protects communications between the party’s attorney

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and any witness required to provide disclosures under paragraph (a)(4), regardless of the form of

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the communications, except to the extent that the communications:

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(b)(7)(B)(i) relate to compensation for the expert’s study or testimony;

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(b)(7)(B)(ii) identify facts or data that the party’s attorney provided and that the expert

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considered in forming the opinions to be expressed; or

(b)(7)(B)(iii) identify assumptions that the party’s attorney provided and that the expert

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relied on in forming the opinions to be expressed.

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(b)(7)(C) Expert employed only for trial preparation. Ordinarily, a party may not, by

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interrogatories or otherwise, discover facts known or opinions held by an expert who has been

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retained or specially employed by another party in anticipation of litigation or to prepare for trial

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and who is not expected to be called as a witness at trial. A party may do so only:

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(b)(7)(C)(i) as provided in Rule 35(b); or

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(b)(7)(C)(ii) on showing exceptional circumstances under which it is impracticable for the

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party to obtain facts or opinions on the same subject by other means.

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(b)(8) Claims of privilege or protection of trial preparation materials.

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(b)(8)(A) Information withheld. If a party withholds discoverable information by claiming that

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it is privileged or prepared in anticipation of litigation or for trial, the party shall make the claim

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expressly and shall describe the nature of the documents, communications, or things not

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produced in a manner that, without revealing the information itself, will enable other parties to

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evaluate the claim.

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(b)(8)(B) Information produced. If a party produces information that the party claims is

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privileged or prepared in anticipation of litigation or for trial, the producing party may notify any

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receiving party of the claim and the basis for it. After being notified, a receiving party must

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promptly return, sequester, or destroy the specified information and any copies it has and may

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not use or disclose the information until the claim is resolved. A receiving party may promptly

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present the information to the court under seal for a determination of the claim. If the receiving

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party disclosed the information before being notified, it must take reasonable steps to retrieve it.

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The producing party must preserve the information until the claim is resolved.

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extraordinary discovery.

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(c)(1) Methods of discovery. Parties may obtain discovery by one or more of the following

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methods: depositions upon oral examination or written questions; written interrogatories; production

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of documents or things or permission to enter upon land or other property, for inspection and other

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purposes; physical and mental examinations; requests for admission; and subpoenas other than for a

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court hearing or trial.

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(c)(2) Sequence and timing of discovery. Methods of discovery may be used in any sequence,

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and the fact that a party is conducting discovery shall not delay any other party's discovery. Except for

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cases exempt under paragraph (a)(3), a party may not seek discovery from any source before that

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party’s initial disclosure obligations are satisfied.

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(c)(3) Definition of tiers for standard discovery. Actions claiming $50,000 or less in damages

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are permitted standard discovery as described for Tier 1. Actions claiming more than $50,000 and

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less than $300,000 in damages are permitted standard discovery as described for Tier 2. Actions

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claiming $300,000 or more in damages are permitted standard discovery as described for Tier 3.

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Absent an accompanying damage claim for more than $300,000, actions claiming non-monetary relief

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are permitted standard discovery as described for Tier 2.

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(c)(4) Definition of damages. For purposes of determining standard discovery, the amount of

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damages includes the total of all monetary damages sought (without duplication for alternative

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theories) by all parties in all claims for relief in the original pleadings.

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(c)(5) Limits on standard fact discovery. Standard fact discovery per side (plaintiffs collectively,

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defendants collectively, and third-party defendants collectively) in each tier is as follows. The days to

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complete standard fact discovery are calculated from the date the first defendant’s first disclosure is

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due and do not include expert discovery under paragraphs(a)(4)(C) and (D).

Days to

Rule 33

Complete

Total Fact

Interrogatories

Rule 34

Rule 36

Standard

Amount of

Deposition

including all

Requests for

Fact

Tier

Damages

Hours

discrete subparts

Production

Admission

Discovery

$50,000 or less

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Rule 26.

Effective May 1, 2015

More than

$50,000 and

less than

$300,000 or

non-monetary

relief

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$300,000 or

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(c)(6) Extraordinary discovery. To obtain discovery beyond the limits established in paragraph

(c)(5), a party shall file:

(c)(6)(A) before the close of standard discovery and after reaching the limits of standard

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discovery imposed by these rules, a stipulated statement that extraordinary discovery is

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necessary and proportional under paragraph (b)(2) and that each party has reviewed and

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approved a discovery budget; or

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(c)(6)(B) before the close of standard discovery and after reaching the limits of standard

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discovery imposed by these rules, a motion request for extraordinary discovery setting forth the

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reasons why the extraordinary discovery is necessary and proportional under paragraph (b)(2)

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and certifying that the party has reviewed and approved a discovery budget and certifying that the

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party has in good faith conferred or attempted to confer with the other party in an effort to achieve

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a stipulation under Rule 37(a).

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(d) Requirements for disclosure or response; disclosure or response by an organization;

failure to disclose; initial and supplemental disclosures and responses.

(d)(1) A party shall make disclosures and responses to discovery based on the information then

known or reasonably available to the party.

(d)(2) If the party providing disclosure or responding to discovery is a corporation, partnership,

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association, or governmental agency, the party shall act through one or more officers, directors,

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managing agents, or other persons, who shall make disclosures and responses to discovery based

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on the information then known or reasonably available to the party.

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(d)(3) A party is not excused from making disclosures or responses because the party has not

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completed investigating the case or because the party challenges the sufficiency of another party's

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disclosures or responses or because another party has not made disclosures or responses.

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(d)(4) If a party fails to disclose or to supplement timely a disclosure or response to discovery,

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that party may not use the undisclosed witness, document or material at any hearing or trial unless

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the failure is harmless or the party shows good cause for the failure.

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(d)(5) If a party learns that a disclosure or response is incomplete or incorrect in some important

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way, the party must timely serve on the other parties the additional or correct information if it has not

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been made known to the other parties. The supplemental disclosure or response must state why the

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additional or correct information was not previously provided.

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(e) Signing discovery requests, responses, and objections. Every disclosure, request for

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discovery, response to a request for discovery and objection to a request for discovery shall be in writing

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and signed by at least one attorney of record or by the party if the party is not represented. The signature

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of the attorney or party is a certification under Rule 11. If a request or response is not signed, the

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receiving party does not need to take any action with respect to it. If a certification is made in violation of

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the rule, the court, upon motion or upon its own initiative, may take any action authorized by Rule 11 or

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Rule 37(e) 37(b).

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(f) Filing. Except as required by these rules or ordered by the court, a party shall not file with the

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court a disclosure, a request for discovery or a response to a request for discovery, but shall file only the

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certificate of service stating that the disclosure, request for discovery or response has been served on the

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other parties and the date of service.

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Advisory Committee Notes

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Disclosure requirements and timing. Rule 26(a)(1). The 2011 amendments seek to reduce

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discovery costs by requiring each party to produce, at an early stage in the case, and without a discovery

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request, all of the documents and physical evidence the party may offer in its case-in-chief and the names

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of witnesses the party may call in its case-in-chief, with a description of their expected testimony. In this

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respect, the amendments build on the initial disclosure requirements of the prior rules. In addition to the

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disclosures required by the prior version of Rule 26(a)(1), a party must disclose each fact witness the

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party may call in its case-in-chief and a summary of the witness’s expected testimony, a copy of all

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documents the party may offer in its case-in-chief, and all documents to which a party refers in its

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pleadings.

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Not all information will be known at the outset of a case. If discovery is serving its proper purpose,

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additional witnesses, documents, and other information will be identified. The scope and the level of detail

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required in the initial Rule 26(a)(1) disclosures should be viewed in light of this reality. A party is not

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required to interview every witness it ultimately may call at trial in order to provide a summary of the

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witness’s expected testimony. As the information becomes known, it should be disclosed. No summaries

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are required for adverse parties, including management level employees of business entities, because

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opposing lawyers are unable to interview them and their testimony is available to their own counsel. For

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uncooperative or hostile witnesses any summary of expected testimony would necessarily be limited to

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the subject areas the witness is reasonably expected to testify about. For example, defense counsel may

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be unable to interview a treating physician, so the initial summary may only disclose that the witness will

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be questioned concerning the plaintiff’s diagnosis, treatment and prognosis. After medical records have

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been obtained, the summary may be expanded or refined.

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Subject to the foregoing qualifications, the summary of the witness’s expected testimony should be

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just that – a summary. The rule does not require prefiled testimony or detailed descriptions of everything

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a witness might say at trial. On the other hand, it requires more than the broad, conclusory statements

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that often were made under the prior version of Rule 26(a)(1)(e.g., ―The witness will testify about the

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events in question‖ or ―The witness will testify on causation.‖). The intent of this requirement is to give the

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other side basic information concerning the subjects about which the witness is expected to testify at trial,

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so that the other side may determine the witness’s relative importance in the case, whether the witness

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should be interviewed or deposed, and whether additional documents or information concerning the

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witness should be sought. This information is important because of the other discovery limits contained in

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the 2011 amendments, particularly the limits on depositions.

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Likewise, the documents that should be provided as part of the Rule 26(a)(1) disclosures are those

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that a party reasonably believes it may use at trial, understanding that not all documents will be available

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at the outset of a case. In this regard, it is important to remember that the duty to provide documents and

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witness information is a continuing one, and disclosures must be promptly supplemented as new

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evidence and witnesses become known as the case progresses.

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The amendments also require parties to provide more information about damages early in the case.

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Too often, the subject of damages is deferred until late in the case. Early disclosure of damages

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information is important. Among other things, it is a critical factor in determining proportionality. The

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committee recognizes that damages often require additional discovery, and typically are the subject of

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expert testimony. The Rule is not intended to require expert disclosures at the outset of a case. At the

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same time, the subject of damages should not simply be deferred until expert discovery. Parties should

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make a good faith attempt to compute damages to the extent it is possible to do so and must in any event

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provide all discoverable information on the subject, including materials related to the nature and extent of

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the damages.

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The penalty for failing to make timely disclosures is that the evidence may not be used in the party’s

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case-in-chief. To make the disclosure requirement meaningful, and to discourage sandbagging, parties

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must know that if they fail to disclose important information that is helpful to their case, they will not be

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able to use that information at trial. The courts will be expected to enforce them unless the failure is

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harmless or the party shows good cause for the failure.

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The 2011 amendments also change the time for making these required disclosures. Because the

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plaintiff controls when it brings the action, plaintiffs must make their disclosures within 14 days after

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service of the first answer. A defendant is required to make its disclosures within 28 days after the

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plaintiff’s first disclosure or after that defendant’s appearance, whichever is later. The purpose of early

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disclosure is to have all parties present the evidence they expect to use to prove their claims or defenses,

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thereby giving the opposing party the ability to better evaluate the case and determine what additional

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discovery is necessary and proportional.

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The time periods for making Rule 26(a)(1) disclosures, and the presumptive deadlines for completing

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fact discovery, are keyed to the filing of an answer. If a defendant files a motion to dismiss or other Rule

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12(b) motion in lieu of an answer, these time periods normally would be not begin to run until that motion

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is resolved.

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Finally, the 2011 amendments eliminate two categories of actions that previously were exempt from

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the mandatory disclosure requirements. Specifically, the amendments eliminate the prior exemption for

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contract actions in which the amount claimed is $20,000 or less, and actions in which any party is

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proceeding pro se. In the committee’s view, these types of actions will benefit from the early disclosure

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requirements and the overall reduced cost of discovery.

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Expert disclosures and timing. Rule 26(a)(3). Expert discovery has become an ever-increasing

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component of discovery cost. The prior rules sought to eliminate some of these costs by requiring the

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written disclosure of the expert’s opinions and other background information. However, because the

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expert was not required to sign these disclosures, and because experts often were allowed to deviate

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from the opinions disclosed, attorneys typically would take the expert’s deposition to ensure the expert

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would not offer ―surprise‖ testimony at trial, thereby increasing rather than decreasing the overall cost.

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The amendments seek to remedy this and other costs associated with expert discovery by, among other

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things, allowing the opponent to choose either a deposition of the expert or a written report, but not both;

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in the case of written reports, requiring more comprehensive disclosures, signed by the expert, and

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making clear that experts will not be allowed to testify beyond what is fairly disclosed in a report, all with

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the goal of making reports a reliable substitute for depositions; and incorporating a rule that protects from

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discovery most communications between an attorney and retained expert. Discovery of expert opinions

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and testimony is automatic under Rule 26(a)(3) and parties are not required to serve interrogatories or

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use other discovery devices to obtain this information.

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Disclosures of expert testimony are made in sequence, with the party who bears the burden of proof

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on the issue for which expert testimony will be offered going first. Within seven days after the close of fact

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discovery, that party must disclose: (i) the expert’s curriculum vitae identifying the expert’s qualifications,

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publications, and prior testimony; (ii) compensation information; (iii) a brief summary of the opinions the

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expert will offer; and (iv) a complete copy of the expert’s file for the case. The file should include all of the

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facts and data that the expert has relied upon in forming the expert’s opinions. If the expert has prepared

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summaries of data, spreadsheets, charts, tables, or similar materials, they should be included. If the

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expert has used software programs to make calculations or otherwise summarize or organize data, that

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information and underlying formulas should be provided in native form so it can be analyzed and

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understood. To the extent the expert is relying on depositions or materials produced in discovery, then a

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list of the specific materials relied upon is sufficient. The committee recognizes that experts frequently will

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prepare demonstrative exhibits or other aids to illustrate the expert’s testimony at trial, and the costs for

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preparing these materials can be substantial. For that reason, these types of demonstrative aids may be

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prepared and disclosed later, as part of the Rule 26(a)(4) pretrial disclosures when trial is imminent.

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Within seven days after this disclosure, the party opposing the retained expert may elect either a

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deposition or a written report from the expert. A deposition is limited to four hours, which is not included in

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the deposition hours under Rule 26(c)(5), and the party taking it must pay the expert’s hourly fee for

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attending the deposition. If a party elects a written report, the expert must provide a signed report

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containing a complete statement of all opinions the expert will express and the basis and reasons for

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them. The intent is not to require a verbatim transcript of exactly what the expert will say at trial; instead

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the expert must fairly disclose the substance of and basis for each opinion the expert will offer. The expert

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may not testify in a party’s case in chief concerning any matter that is not fairly disclosed in the report. To

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achieve the goal of making reports a reliable substitute for depositions, courts are expected to enforce

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this requirement. If a party elects a deposition, rather than a report, it is up to the party to ask the

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necessary questions to ―lock in‖ the expert’s testimony. But the expert is expected to be fully prepared on

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all aspects of his/her trial testimony at the time of the deposition and may not leave the door open for

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additional testimony by qualifying answers to deposition questions.

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The report or deposition must be completed within 28 days after the election is made. After this, the

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party who does not bear the burden of proof on the issue for which expert testimony is offered must make

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its corresponding disclosures and the opposing party may then elect either a deposition or a written

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report. Under the deadlines contained in the rules, expert discovery should take less than three months to

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complete. However, as with the other discovery rules, these deadlines can be altered by stipulation of the

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parties or order of the court.

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The amendments also address the issue of testimony from non-retained experts, such as treating

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physicians, police officers, or employees with special expertise, who are not retained or specially

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employed to provide expert testimony, or whose duties as an employee do not regularly involve giving

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expert testimony. This issue was addressed by the Supreme Court in Drew v. Lee, 2011 UT 15, wherein

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the court held that reports under the prior version of Rule 26(a)(3) are not required for treating physicians.

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There are a number of difficulties inherent in disclosing expert testimony that may be offered from fact

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witnesses. First, there is often not a clear line between fact and expert testimony. Many fact witnesses

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have scientific, technical or other specialized knowledge, and their testimony about the events in question

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often will cross into the area of expert testimony. The rules are not intended to erect artificial barriers to

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the admissibility of such testimony. Second, many of these fact witnesses will not be within the control of

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the party who plans to call them at trial. These witnesses may not be cooperative, and may not be willing

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to discuss opinions they have with counsel. Where this is the case, disclosures will necessarily be more

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limited. On the other hand, consistent with the overall purpose of the 2011 amendments, a party should

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receive advance notice if their opponent will solicit expert opinions from a particular witness so they can

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plan their case accordingly. In an effort to strike an appropriate balance, the rules require that such

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witnesses be identified and the information about their anticipated testimony should include that which is

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required under Rule 26(a)(1)(A)(ii), which should include any opinion testimony that a party expects to

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elicit from them at trial. If a party has disclosed possible opinion testimony in its Rule 26(a)(1)(A)(ii)

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disclosures, that party is not required to prepare a separate Rule 26(a)(3)(D) 26(a)(4)(E) disclosure for the

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witness. And if that disclosure is made in advance of the witness’s deposition, those opinions should be

Rule 26.

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explored in the deposition and not in a separate expert deposition. Otherwise, the timing for disclosure of

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non-retained expert opinions is the same as that for retained experts under Rule 26(a)(4)(C) and depends

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on whether the party has the burden of proof or is responding to another expert. Rules 26(a)(3)(D)

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26(a)(4)(E) and 26(a)(1)(A)(ii) are not intended to elevate form over substance – all they require is that a

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party fairly inform its opponent that opinion testimony may be offered from a particular witness. And

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because a party who expects to offer this testimony normally cannot compel such a witness to prepare a

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written report, further discovery must be done by interview or by deposition.

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Finally, the amendments include a new Rule 26(b)(7) that protects from discovery draft expert reports

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and, with limited exception, communications between an attorney and an expert. These changes are

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modeled after the recent changes to the Federal Rules of Civil Procedure and are intended to address the

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unnecessary and costly procedures that often were employed in order to protect such information from

400

discovery, and to reduce ―satellite litigation‖ over such issues.

401

Scope of discovery—Proportionality. Rule 26(b). Proportionality is the principle governing the

402

scope of discovery. Simply stated, it means that the cost of discovery should be proportional to what is at

403

stake in the litigation.

404

In the past, the scope of discovery was governed by ―relevance‖ or the ―likelihood to lead to discovery

405

of admissible evidence.‖ These broad standards may have secured just results by allowing a party to

406

discover all facts relevant to the litigation. However, they did little to advance two equally important

407

objectives of the rules of civil procedure—the speedy and inexpensive resolution of every action.

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Accordingly, the former standards governing the scope of discovery have been replaced with the

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proportionality standards in subpart (b)(1).

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The concept of proportionality is not new. The prior rule permitted the Court to limit discovery

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methods if it determined that ―the discovery was unduly burdensome or expensive, taking into account the

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needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of

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the issues at stake in the litigation.‖ The Federal Rules of Civil Procedure contains a similar provision.

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See Fed. R. Civ. P. 26(b)(2)(C). This method of limiting discovery, however, was rarely invoked either

415

under the Utah rules or federal rules.

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Under the prior rule, the party objecting to the discovery request had the burden of proving that a

417

discovery request was not proportional. The new rule changes the burden of proof. Today, the party

418

seeking discovery beyond the scope of ―standard‖ discovery has the burden of showing that the request

419

is ―relevant to the claim or defense of any party‖ and that the request satisfies the standards of

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proportionality. As before, ultimate admissibility is not an appropriate objection to a discovery request so

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long as the proportionality standard and other requirements are met.

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The 2011 amendments establish three tiers of standard discovery in Rule 26(c). Ideally, rules of

423

procedure should be crafted to promote predictability for litigants. Rules should limit the need to resort to

424

judicial oversight. Tiered standard discovery seeks to achieve these ends. The ―one-size-fits-all‖ system is

Rule 26.

Effective May 1, 2015

425

rejected. Tiered discovery signals to judges, attorneys, and parties the amount of discovery which by rule

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is deemed proportional for cases with different amounts in controversy.

427

Any system of rules which permits the facts and circumstances of each case to inform procedure

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cannot eliminate uncertainty. Ultimately, the trial court has broad discretion in deciding whether a

429

discovery request is proportional. The proportionality standards in subpart (b)(2) and the discovery tiers in

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subpart (c) mitigate uncertainty by guiding that discretion. The proper application of the proportionality

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standards will be defined over time by trial and appellate courts.

432

Standard and extraordinary discovery. Rule 26(c). As a counterpart to requiring more detailed

433

disclosures under Rule 26(a), the 2011 amendments place new limitations on additional discovery the

434

parties may conduct. Because the committee expects the enhanced disclosure requirements will

435

automatically permit each party to learn the witnesses and evidence the opposing side will offer in its

436

case-in-chief, additional discovery should serve the more limited function of permitting parties to find

437

witnesses, documents, and other evidentiary materials that are harmful, rather than helpful, to the

438

opponent’s case.

439

Rule 26(c) provides for three separate ―tiers‖ of limited, ―standard‖ discovery that are presumed to be

440

proportional to the amount and issues in controversy in the action, and that the parties may conduct as a

441

matter of right. An aggregation of all damages sought by all parties in an action dictates the applicable tier

442

of standard discovery, whether such damages are sought by way of a complaint, counterclaim, or

443

otherwise. The tiers of standard discovery are set forth in a chart that is embedded in the body of the rule

444

itself. ―Tier 1‖ describes a minimal amount of standard discovery that is presumed proportional for cases

445

involving damages of $50,000 or less. ―Tier 2‖ sets forth larger limits on standard discovery that are

446

applicable in cases involving damages above $50,000 but less than $300,000. Finally, ―Tier 3‖ prescribes

447

still greater standard discovery for actions involving damages in excess of $300,000. Deposition hours

448

are charged to a side for the time spent asking questions of the witness. In a particular deposition, one

449

side may use two hours while the other side uses only 30 minutes. The tiers also provide presumptive

450

limitations on the time within which standard discovery should be completed, which limitations similarly

451

increase with the amount of damages at issue. Discovery motions A statement of discovery issues will not

452

toll the period. Parties are expected to be reasonable and accomplish as much as they can during

453

standard discovery. The motions A statement of discovery issues may result in additional discovery and

454

sanctions at the expense of a party who unreasonably fails to respond or otherwise frustrates discovery.

455

After the expiration of the applicable time limitation, a case is presumed to be ready for trial. Actions for

456

non-monetary relief, such as injunctive relief, are subject to the standard discovery limitations of Tier 2,

457

absent an accompanying monetary claim of $300,000 or more, in which case Tier 3 applies. The

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committee determined these standard discovery limitations based on the expectation that for the majority

459

of cases filed in the Utah State Courts, the magnitude of available discovery and applicable time

460

parameters available under the three-tiered system should be sufficient for cases involving the respective

461

amounts of damages.

Rule 26.

462

Effective May 1, 2015

Despite the expectation that standard discovery according to the applicable tier should be adequate

463

in the typical case, the 2011 amendments contemplate there will be some cases for which standard

464

discovery is not sufficient or appropriate. In such cases, parties may conduct additional discovery that is

465

shown to be consistent with the principle of proportionality. There are two ways to obtain such additional

466

discovery. The first is by stipulation. If the parties can agree additional discovery is necessary, they may

467

stipulate to as much additional discovery as they desire, provided they stipulate the additional discovery is

468

proportional to what is at stake in the litigation and counsel for each party certifies that the party has

469

reviewed and approved a budget for additional discovery. Such a stipulation should be filed before the

470

close of the standard discovery time limit, but only after reaching the limits for that type of standard

471

discovery available under the rule. If these conditions are met, the Court will not second-guess the parties

472

and their counsel and must approve the stipulation.

473

The second method to obtain additional discovery is by motion a statement of discovery issues. The

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committee recognizes there will be some cases in which additional discovery is appropriate, but the

475

parties cannot agree to the scope of such additional discovery. These may include, among other

476

categories, large and factually complex cases and cases in which there is a significant disparity in the

477

parties’ access to information, such that one party legitimately has a greater need than the other party for

478

additional discovery in order to prepare properly for trial. To prevent a party from taking advantage of this

479

situation, the 2011 amendments allow any party to move the Court for request additional discovery. As

480

with stipulations for extraordinary discovery, a party filing a motion for requesting extraordinary discovery

481

should do so before the close of the standard discovery time limit, but only after the moving party has

482

reached the limits for that type of standard discovery available to it under the rule. By taking advantage of

483

this discovery, counsel should be better equipped to articulate for the court what additional discovery is

484

needed and why. The requesting party making such a motion must demonstrate that the additional

485

discovery is proportional and certify that the party has reviewed and approved a discovery budget. The

486

burden to show the need for additional discovery, and to demonstrate relevance and proportionality,

487

always falls on the party seeking additional discovery. However, cases in which such additional discovery

488

is appropriate do exist, and it is important for courts to recognize they can and should permit additional

489

discovery in appropriate cases, commensurate with the complexity and magnitude of the dispute.

490

Protective order language moved to Rule 37. The 2011 amendments delete in its entirety the prior

491

language of Rule 26(c) governing motions for protective orders. The substance of that language is now

492

found in Rule 37. The committee determined it was preferable to cover motions requests for an order to

493

compel, motions for a protective orders, and motions for discovery sanctions in a single rule, rather than

494

two separate rules. Accordingly, Rule 37 now governs these motions and orders.

495

Consequences of failure to disclose. Rule 26(d). If a party fails to disclose or to supplement timely

496

its discovery responses, that party cannot use the undisclosed witness, document, or material at any

497

hearing or trial, absent proof that non-disclosure was harmless or justified by good cause. More complete

498

disclosures increase the likelihood that the case will be resolved justly, speedily, and inexpensively. Not

Rule 26.

Effective May 1, 2015

499

being able to use evidence that a party fails properly to disclose provides a powerful incentive to make

500

complete disclosures. This is true only if trial courts hold parties to this standard. Accordingly, although a

501

trial court retains discretion to determine how properly to address this issue in a given case, the usual and

502

expected result should be exclusion of the evidence.

503

Legislative Note

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.