Draft: April 28, 2011

Rule 26.

Draft: April 28, 2011

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Rule 26. General provisions governing disclosure and discovery.

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(a) Required disclosures; Discovery methodsDisclosure. This rule applies unless

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changed or supplemented by a rule governing disclosure and discovery in a practice

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area.

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(a)(1) Initial disclosures. Except in cases exempt under subdivisionparagraph (a)(2)

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and except as otherwise stipulated or directed by order,), a party shall, without

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awaitingwaiting for a discovery request, provide to other parties:

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

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

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claims or defenses, unless solely for impeachment, identifying the subjects of the

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information; and

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(a)(1)(A)(ii) each fact witness the party may call in its case-in-chief and a summary

of the expected testimony;

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(a)(1)(B) a copy of, or a description by category and location of, all discoverable

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documents, data compilations, electronically stored information, and tangible things in

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the possession, custody, or control of the party supporting its claims or defenses, unless

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solely for impeachment; or control of the party that the party may offer in its case-in-

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

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prepared and must be disclosed in accordance with paragraph (a)(4)(C);

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(a)(1)(C) a computation of any category of damages claimed by the disclosing party,

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making available for inspection and copying as under Rule 34 a copy of all discoverable

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documents or other evidentiary material on which such computation is based, including

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materials bearing onabout the nature and extent of injuries suffered; and

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(a)(1)(D) for inspection and copying as under Rule 34 a copy of any insurance

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agreement under which any person carrying on an insurance business may be liable to

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satisfy part or all of a judgment which may be entered in the case or to indemnify or

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reimburse for payments made to satisfy the judgment.; and

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Unless otherwise stipulated by the parties or ordered by the court, the disclosures

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required by subdivision (a)(1) shall be made within 14 days after the meeting of the

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parties under subdivision (f). Unless otherwise stipulated by the parties or ordered by

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the court, a party joined after the meeting of the parties shall make these disclosures

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within 30 days after being served. A party shall make initial disclosures based on the

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information then reasonably available and is not excused from making disclosures

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because the party has not fully completed the investigation of the case or because the

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party challenges the sufficiency of another party's disclosures or because another party

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has not made disclosures.

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

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(a)(1)(F) The disclosures required by paragraph (a)(1) shall be made:

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(a)(1)(F)(i) by the plaintiff within 14 days after service of the first answer to the

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complaint; and

(a)(1)(F)(ii) by the defendant within 28 days after the plaintiff’s first disclosure or after

that defendant’s appearance, whichever is later.

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(a)(2) Exemptions.

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(a)(2)(A) TheUnless otherwise ordered by the court or agreed to by the parties, the

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requirements of subdivisionparagraph (a)(1) and subdivision (f) do not apply to actions:

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(a)(2)(A)(i) based on contract in which the amount demanded in the pleadings is

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$20,000 or less;

(a)(2)(A)(ii(a)(2)(A)(i) for judicial review of adjudicative proceedings or rule making

proceedings of an administrative agency;

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(a)(2)(A)(iiiii) governed by Rule 65B or Rule 65C;

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(a)(2)(A)(iviii) to enforce an arbitration award;

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(a)(2)(A)(viv) for water rights general adjudication under Title 73, Chapter 4; and

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(a)(2)(A)(vi) in which any party not admitted to practice law in Utah is not

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represented by counsel.

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(a)(2)(B) In an exempt action, the matters subject to disclosure under

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subpartparagraph (a)(1) are subject to discovery under subpartparagraph (b).

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(a)(3) Disclosure of expert testimony.

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(a)(3)(A) Expert Testimony. A party shall disclose, without waiting for a discovery

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request, provide to the other parties the identity offollowing information regarding any

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person who may be used at trial to present evidence under Rules 702, 703, or 705 of

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the Utah Rules of Evidence.

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(a)(3)(B) Unless otherwise stipulated by the parties or ordered by the court, this

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disclosure shall, with respect to a witness and who is retained or specially employed to

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provide expert testimony in the case or whose duties as an employee of the party

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regularly involve giving expert testimony, be accompanied by a written report prepared:

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(i) the expert’s name and signed by the witness or party. The report shall contain the

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subject matter on which the expert is expected to testify; the substance of the facts and

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opinions to which the expert is expected to testify; a summary of the grounds for each

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opinion; the qualifications of the witness, including a list of all publications authored by

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the witness within the preceding ten10 years; the compensation to be paid for the study

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and testimony; and a listing, and a list of any other cases in which the witnessexpert has

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testified as an expert at trial or by deposition within the preceding four years, (ii) a brief

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summary of the opinions to which the witness is expected to testify, (iii) all data and

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other information that will be relied upon by the witness in forming those opinions, and

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

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(a)(3)(B) Limits on Expert Discovery. Further discovery may be obtained from an

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expert witness either by deposition or by written report. A deposition shall not exceed

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four hours and the party taking the deposition shall pay the expert’s reasonable hourly

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fees for attendance at the deposition. A report shall be signed by the expert and shall

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contain a complete statement of all opinions the expert will offer at trial and the basis

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and reasons for them. Such an expert may not testify in a party’s case-in-chief

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concerning any matter not fairly disclosed in the report. The party offering the expert

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shall pay the costs for the report.

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(a)(3)(C) Unless otherwise stipulated by the parties or ordered by the court, the

disclosures Timing for Expert Discovery.

(a)(3)(C)(i) The party who bears the burden of proof on the issue for which expert

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testimony is offered shall provide the information required by subdivisionparagraph

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(a)(3) shall be made)(A) within 30seven days after the expirationclose of fact discovery

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as . Within seven days thereafter, the party opposing the expert may serve notice

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electing either a deposition of the expert pursuant to paragraph (a)(3)(B) and Rule 30,

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or a written report pursuant to paragraph (a)(3)(B). The deposition shall occur, or the

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report shall be provided by subdivision (d) or, if the evidence is intended solely to

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contradict or rebut evidence on the same subject matter identified, within 28 days after

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the election is made. If no election is made, then no further discovery of the expert shall

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be permitted.

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(a)(3)(C)(ii) The party who does not bear the burden of proof on the issue for which

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expert testimony is offered shall provide the information required by another party

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paragraph (a)(3)(A) within seven days after the later of (i) the date on which the election

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under paragraph (3)(B), within 60 days after the disclosure made by the other

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partya)(3)(C)(i) is due, or (ii) receipt of the written report or the taking of the expert’s

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deposition pursuant to paragraph (a)(3)(C)(i). Within seven days thereafter, the party

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

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to paragraph (a)(3)(B) and Rule 30, or a written report pursuant to paragraph (a)(3)(B).

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The deposition shall occur, or the report shall be provided, within 28 days after the

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election is made. If no election is made, then no further discovery of the expert shall be

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permitted.

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(a)(3)(C)(iii) In multiparty actions, all parties opposing the expert must agree on

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

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further discovery of the expert may be obtained only by deposition pursuant to

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paragraph (a)(3)(B) and Rule 30.

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(a)(3)(D) If a party intends to present evidence at trial under Rules 702, 703, or 705

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of the Utah Rules of Evidence from any person other than an expert witness who is

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retained or specially employed to provide testimony in the case or a person whose

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

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must provide a written summary of the facts and opinions to which the witness is

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expected to testify in accordance with the deadlines set forth in paragraph (a)(3)(C). A

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deposition of such a witness may not exceed four hours.

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(a)(4) Pretrial disclosures. A party shall, without waiting for a discovery request,

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provide to other parties the following information regarding the evidence that it may

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present at trial other than solely for impeachment:

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(a)(4)(A) the name and, if not previously provided, the address and telephone

number of each witness, unless solely for impeachment, separately identifying

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witnesses the party expects to present will call and witnesses the party may call if the

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need arises;

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(a)(4)(B) the designationname of witnesses whose testimony is expected to be

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presented by meanstranscript of a deposition and, if not taken stenographically, a

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transcriptcopy of the pertinent portions oftranscript with the depositionproposed

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testimony designated; and

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(a)(4)(C) an appropriate identificationa copy of each document or other exhibit,

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including charts, summaries of other evidenceand demonstrative exhibits, unless solely

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for impeachment, separately identifying those which the party expects towill offer and

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those which the party may offer if the need arises..

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Unless otherwise stipulated by the parties or ordered by the court, the

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disclosures(a)(4)(D) Disclosure required by subdivisionparagraph (a)(4) shall be made

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at least 3028 days before trial. WithinAt least 14 days thereafter, unless a different time

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is specified by the courtbefore trial, a party mayshall serve and file a list disclosing (i)

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anycounter-designations of deposition testimony, objections and grounds for the

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objections to the use under Rule 32(a) of a deposition designated by another party

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under subparagraph (B) and (ii) any objection, together with the grounds therefor, that

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may be made and to the admissibility of materials identified under subparagraph (C).

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Objections not so disclosed, otherexhibits. Other than objections under Rules 402 and

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403 of the Utah Rules of Evidence, shall be deemedobjections not listed are waived

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unless excused by the court for good cause shown.

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(a)(5) Form of disclosures. Unless otherwise stipulated by the parties or ordered by

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the court, all disclosures under paragraphs (1), (3) and (4) shall be made in writing,

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signed and served.

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(a)(6) Methods to discover additional matter. Parties may obtain discovery by one or

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more of the following methods: depositions upon oral examination or written questions;

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written interrogatories; production of documents or things or permission to enter upon

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land or other property, for inspection and other purposes; physical and mental

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examinations; and requests for admission.

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(b) Discovery scope and limits. Unless otherwise limited by order of the court in

accordance with these rules, the scope of discovery is as follows:.

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Draft: April 28, 2011

(b)(1) In general. Parties may obtain discovery regarding discover any matter, not

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privileged, which is relevant to the subject matter involved in the pending action,

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whether it relates to the claim or defense of the party seeking discovery or to the claim

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or defense of any other party, including the existence, description, nature, custody,

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condition, and location of any books, documents, or other tangible things and the

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identity and location of persons having knowledge of any discoverable matter. It is not

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ground for objection that the information sought will be inadmissible at the trial if the

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information sought appears reasonably calculated to lead to theany party if the

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discovery satisfies the standards of proportionality set forth below.

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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

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in controversy, the complexity of the case, the parties' resources, the importance of the

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issues, and the importance of the discovery in resolving the issues;

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(b)(2)(B) the likely benefits of the proposed discovery of admissible

evidence.outweigh the burden or expense;

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(b)(2) A party need not provide)(C) the discovery of is consistent with the overall

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case management and will further the just, speedy and inexpensive determination of the

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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

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convenient, 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

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the information.

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

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proportionality and relevance. To ensure proportionality, the court may enter orders

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under Rule 37.

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

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information from sources that the party identifies asis not reasonably accessible

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because of undue burden or cost. The party shall expressly make any claim that the

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source is not reasonably accessible, describing shall describe the source of the

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electronically stored information, the nature and extent of the burden, the nature of the

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information not provided, and any other information that will enable other parties to

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assess the claim. On motion to compel discovery or for a protective order, the party

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from whom discovery is sought must show that the information is not reasonably

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accessible because of undue burden or cost. If that showing is made, the court may

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order discovery from such sources if the requesting party shows good cause,

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considering the limitations of subsection (b)(3). The court may specify conditions for the

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discovery.evaluate the claim.

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(b)(3) Limitations. The frequency or extent of use of the discovery methods set forth

in Subdivision (a)(6) shall be limited by the court if it determines that:

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(b)(3)(A) the discovery sought is unreasonably cumulative or duplicative, or is

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obtainable from some other source that is more convenient, less burdensome, or less

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expensive;

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(b)(3)(B) the party seeking discovery has had ample opportunity by discovery in the

action to obtain the information sought; or

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(b)(3)(C) the discovery is 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

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the importance of the issues at stake in the litigation. The court may act upon its own

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initiative after reasonable notice or pursuant to a motion under Subdivision (c).

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(b)(4) (b)(5) Trial preparation: Materials. Subject to the provisions of Subdivision

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(b)(5) of this rule, a materials. A party may obtain discovery ofotherwise discoverable

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documents and tangible things otherwise discoverable under Subdivision (b)(1) of this

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rule and prepared in anticipation of litigation or for trial by or for another party or by or

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for that other party's representative (including the party’s attorney, consultant, surety,

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indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has

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substantial need of the materials in the preparation of the case and that the party is

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unable without undue hardship to obtain the substantialsubstantially equivalent of the

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materials by other means. In ordering discovery of such materials when the required

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showing has been made, the court shall protect against disclosure of the mental

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

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representative of a party concerning the litigation.

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

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showing required showingin paragraph (b)(5) a statement concerning the action or its

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subject matter previously made by that party. Upon request, a person not a party may

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obtain without the required showing a statement concerningabout the action or its

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subject matter previously made by that person. If the request is refused, the person may

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move for a court order. The provisions of under Rule 37(a)(4) apply to the award of

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expenses incurred in relation to the motion. For purposes of this paragraph, a. A

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statement previously made is (A) a written statement signed or otherwise adopted or

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

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electricalelectronic, or other recording, or a transcription thereof, which is a substantially

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verbatim recital of an oral statement by the person making it and contemporaneously

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recorded.

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(b)(57) Trial preparation: Experts; experts.

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(b)(57)(A) A party may deposeTrial-preparation protection for draft reports or

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disclosures. Paragraph (b)(5) protects drafts of any person who has been identified as

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an expert whose opinions may be presented at trial. If a report is or disclosure required

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under subdivisionparagraph (a)(3)(B),), regardless of the form in which the draft is

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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

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attorney and any deposition shall be conducted within 60 days after the report iswitness

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required to provide disclosures under paragraph (a)(3), regardless of the form of the

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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

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expert considered in forming the opinions to be expressed; or

(b)(5)(B) A party may(b)(7)(B)(iii) identify assumptions that the party’s attorney

provided and that the expert 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

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has been retained or specially employed by another party in anticipation of litigation or

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preparationto prepare for trial and who is not expected to be called as a witness at trial,

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only as provided in Rule 35(b) or upon a showing of exceptional circumstances under

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which it is impracticable for the. A party seeking discovery to obtain facts or opinions on

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the same subject by other means.may do so only:

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(b)(5)(C) Unless manifest injustice would result,

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(b)(57)(C)(i) The court shall require that the party seeking discovery pay the expert a

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reasonable fee for time spent in responding to discovery under Subdivision (b)(5) of this

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rule; andas provided in Rule 35(b); or

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(b)(5)(C)(ii) With respect to discovery obtained under Subdivision (b)(5)(A) of this

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rule the court may require, and with respect to discovery obtained under Subdivision

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(b)(5)(B) of this rule the court shall require, the party seeking discovery to pay the other

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party a fair portion of the fees and expenses reasonably incurred by the latter party in

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obtaining facts and opinions from the expert.

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(b)(6(b)(7)(C)(ii) on showing exceptional circumstances under which it is

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impracticable for the party to obtain facts or opinions on the same subject by other

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means.

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(b)(8) Claims of Privilegeprivilege or Protectionprotection of Trial Preparation

Materialstrial preparation materials.

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(b)(68)(A) Information withheld. WhenIf a party withholds information otherwise

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discoverable under these rules information by claiming that it is privileged or subject to

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protection as trial preparation materialprepared in anticipation of litigation or for trial, the

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party shall make the claim expressly and shall describe the nature of the documents,

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communications, or things not produced or disclosed in a manner that, without revealing

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the information itself privileged or protected, will enable other parties to assess the

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applicability ofevaluate the privilege or protectionclaim.

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(b)(68)(B) Information produced. If a party produces information that the party claims

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is producedprivileged or prepared in discovery that is subject to a claimanticipation of

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privilegelitigation or of protection asfor trial-preparation material, the party making, the

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claimproducing party may notify any receiving party that received the information of the

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

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sequester, or destroy the specified information and any copies it has and may not use

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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

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receiving party disclosed the information before being notified, it must take reasonable

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steps to retrieve it. The producing party must preserve the information until the claim is

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resolved.

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(c) Protective orders. Upon motion by a party or by the person from whom discovery

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is sought, accompanied by a certification that the movant has in good faith conferred or

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attempted to confer with other affected parties in an effort to resolve the dispute without

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court action, and for good cause shown, the court in which the action is pending or

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alternatively, on matters relating to a deposition, the court in the district where the

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deposition is to be taken may make any order which justice requires to protect a party or

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person from annoyance, embarrassment, oppression, or undue burden or expense,

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including one or more of the following:

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(c)(1) that the discovery not be had;

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(c)(2) that the discovery may be had only on specified terms and conditions,

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including a designation of the time or place;

(c)(3) that the discovery may be had only by a method of discovery other than that

selected by the party seeking discovery;

(c)(4) that certain matters not be inquired into, or that the scope of the discovery be

limited to certain matters;

(c)(5) that discovery be conducted with no one present except persons designated

by the court;

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(c)(6) that a deposition after being sealed be opened only by order of the court;

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(c)(7) that a trade secret or other confidential research, development, or commercial

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information not be disclosed or be disclosed only in a designated way;

(c)(8) that the parties simultaneously file specified documents or information

enclosed in sealed envelopes to be opened as directed by the court.

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If the motion for a protective order is denied in whole or in part, the court may, on

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such terms and conditions as are just, order that any party or person provide or permit

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discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in

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relation to the motion.

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(d) Sequence and timing of discovery. Except for cases exempt under subdivision

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(a)(2), except as authorized under these rules, or unless otherwise stipulated by the

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parties or ordered by the court, a party may not seek discovery from any source before

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the parties have met and conferred as required by subdivision (f). Unless otherwise

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stipulated by the parties or ordered by the court, fact discovery shall be completed

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within 240 days after the first answer is filed. Unless the court upon motion, for the

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convenience of parties and witnesses and in the interests of justice, orders otherwise,(c)

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Sequence and timing of discovery; tiers; limits on standard discovery; extraordinary

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discovery.

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(c)(1) Methods of discovery; sequence and timing of discovery.

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(c)(1) Parties may obtain discovery by one or more of the following methods:

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depositions upon oral examination or written questions; written interrogatories;

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production of documents or things or permission to enter upon land or other property,

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for inspection and other purposes; physical and mental examinations; requests for

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admission; and subpoenas other than for a court hearing or trial.

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(c)(2) Methods of discovery may be used in any sequence, and the fact that a party

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is conducting discovery, whether by deposition or otherwise, shall not operate to delay

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any other party's discovery. Except for cases exempt under paragraph (a)(2), a party

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may not seek discovery from any source before that party’s initial disclosure obligations

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are satisfied.

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(e) Supplementation of responses. A party who has made a disclosure under

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subdivision (a) or responded to a request for discovery with a response is under a duty

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to supplement the disclosure or response to include information thereafter acquired if

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ordered by the court or in the following circumstances:

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(e)(1) A party is under a duty to supplement at appropriate intervals disclosures

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under subdivision (a) if the party learns that in some material respect the information

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disclosed is incomplete or incorrect and if the additional or corrective information has

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not otherwise been made known to the other parties during the discovery process or in

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writing. With respect to testimony of an expert from whom a report is required under

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subdivision (a)(3)(B) the duty extends both to information contained in the report and to

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information provided through a deposition of the expert.

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(e)(2) A party is under a duty seasonably to amend a prior response to an

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interrogatory, request for production, or request for admission if the party learns that the

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response is in some material respect incomplete or incorrect and if the additional or

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corrective information has not otherwise been made known to the other parties during

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the discovery process or in writing.

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(f) Discovery and scheduling conference.

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The following applies to all cases not exempt under subdivision (a)(2), except as

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otherwise stipulated or directed by order.

(f)(1) The parties shall, as soon as practicable after commencement of the action,

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meet in person or by telephone to discuss the nature and basis of their claims and

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defenses, to discuss the possibilities for settlement of the action, to make or arrange for

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the disclosures required by subdivision (a)(1), to discuss any issues relating to

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preserving discoverable information and to develop a stipulated discovery plan.

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Plaintiff’s counsel shall schedule the meeting. The attorneys of record shall be present

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at the meeting and shall attempt in good faith to agree upon the discovery plan.

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(f)(2) The plan shall include:

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(f)(2)(A) what changes should be made in the timing, form, or requirement for

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disclosures under subdivision (a), including a statement as to when disclosures under

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subdivision (a)(1) were made or will be made;

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(f)(2)(B) the subjects on which discovery may be needed, when discovery should be

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completed, whether discovery should be conducted in phases and whether discovery

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should be limited to particular issues;

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(f)(2)(C) any issues relating to preservation, disclosure or discovery of electronically

stored information, including the form or forms in which it should be produced;

(f)(2)(D) any issues relating to claims of privilege or of protection as trial-preparation

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material, including - if the parties agree on a procedure to assert such claims after

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production - whether to ask the court to include their agreement in an order;

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(f)(2)(E) what changes should be made in the limitations on discovery imposed

under these rules, and what other limitations should be imposed;

(f)(2)(F) the deadline for filing the description of the factual and legal basis for

allocating fault to a non-party and the identity of the non-party; and

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(f)(2)(G) any other orders that should be entered by the court.

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(f)(3) Plaintiff’s counsel shall submit to the court within 14 days after the meeting and

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in any event no more than 60 days after the first answer is filed a proposed form of

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order in conformity with the parties’ stipulated discovery plan. The proposed form of

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order shall also include each of the subjects listed in Rule 16(b)(1)-(8), except that the

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date or dates for pretrial conferences, final pretrial conference and trial shall be

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scheduled with the court or may be deferred until the close of discovery. If the parties

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are unable to agree to the terms of a discovery plan or any part thereof, the plaintiff

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shall and any party may move the court for entry of a discovery order on any topic on

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which the parties are unable to agree. Unless otherwise ordered by the court, the

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presumptions established by these rules shall govern any subject not included within

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the parties’ stipulated discovery plan.

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(f)(4) Any party may request a scheduling and management conference or order

under Rule 16(b).

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(f)(5) A party joined after the meeting of the parties is bound by the stipulated

386

discovery plan and discovery order, unless the court orders on stipulation or motion a

387

modification of the discovery plan and order. The stipulation or motion shall be filed

388

within a reasonable time after joinder.

389

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

390

in damages are permitted standard discovery as described for Tier 1. Actions claiming

391

more than $50,000 and less than $300,000 in damages are permitted standard

392

discovery as described for Tier 2. Actions claiming $300,000 or more in damages are

393

permitted standard discovery as described for Tier 3. Absent an accompanying damage

394

claim for more than $300,000, actions claiming non-monetary relief are permitted

395

standard discovery as described for Tier 2.

396

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

397

amount of damages includes the total of all monetary damages sought (without

398

duplication for alternative theories) by all parties in all claims for relief in the original

399

pleadings, but not including punitive damages.

400

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

401

collectively, defendants collectively, and third-party defendants collectively) in each tier

Rule 26.

Draft: April 28, 2011

402

is as follows. The days to complete standard fact discovery are calculated from the date

403

the first defendant’s first disclosure is due and do not include expert discovery under

404

Rule 26(a)(3)(C) and (D).

Tier

1

2

3

405

406

Amount of

Damages

$50,000 or less

More than

$50,000 and less

than $300,000 or

non-monetary

relief

$300,000 or more

Total Fact

Deposition

Hours

3

Rule 33

Interrogatories

including all

discrete subparts

0

Rule 34

Requests

for

Production

5

Rule 36

Requests

for

Admission

5

Days to

Complete

Standard

Fact

Discovery

120

15

30

10

20

10

20

10

20

180

210

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

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

407

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

408

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

409

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

410

reviewed and approved a discovery budget; or

411

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

412

standard discovery imposed by these rules, a motion for extraordinary discovery setting

413

forth the reasons why the extraordinary discovery is necessary and proportional under

414

paragraph (b)(2) and certifying that the party has reviewed and approved a discovery

415

budget and certifying that the party has in good faith conferred or attempted to confer

416

with the other party in an effort to achieve a stipulation.

417

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

418

organization; failure to disclose; initial and supplemental disclosures and responses.

419

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

420

information then known or reasonably available to the party.

421

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

422

partnership, association, or governmental agency, the party shall act through one or

423

more officers, directors, managing agents, or other persons.

424

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

425

party has not completed investigating the case or because the party challenges the

Rule 26.

Draft: April 28, 2011

426

sufficiency of another party's disclosures or responses or because another party has not

427

made disclosures or responses.

428

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

429

discovery, that party may not use the undisclosed witness, document or material at any

430

hearing or trial unless the failure is harmless or the party shows good cause for the

431

failure.

432

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

433

some important way, the party must timely provide the additional or correct information

434

if it has not been made known to the other parties. The supplemental disclosure or

435

response must state why the additional or correct information was not previously

436

provided.

437

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

438

request for discovery or, response orto a request for discovery and objection thereto

439

made byto a partyrequest for discovery shall be in writing and signed by at least one

440

attorney of record or by the party if the party is not represented, whose address shall be

441

stated. The signature of the attorney or party constitutes a certification that the person

442

has read the request, response, or objection and that to the best of the person’s

443

knowledge, information, and belief formed after reasonable inquiry it is: (1) consistent

444

with these rules and warranted by existing law or a good faith argument for the

445

extension, modification, or reversal of existing law; (2) not interposed for any improper

446

purpose, such as to harass or to cause unnecessary delay or needless increase in the

447

cost of litigation; and (3) not unreasonable or unduly burdensome or expensive, given

448

the needs of the case, the discovery already had in the case, the amount in controversy,

449

and the importance of the issues at stake in the litigation. If a request, response, or

450

objection is not is a certification under Rule 11. If a request or response is not signed, it

451

shall be stricken unless it is signed promptly after the omission is called to the attention

452

of the party making the request, response, or objection, and a party shall not be

453

obligatedthe receiving party does not need to take any action with respect to it until it is

454

signed.

455

. If a certification is made in violation of the rule, the court, upon motion or upon its

456

own initiative, shall impose upon the person who made the certification, the party on

Rule 26.

Draft: April 28, 2011

457

whose behalf the request, response, or objection is made, or both, an appropriate

458

sanction, which may include an order to pay the amount of the reasonable expenses

459

incurred because of the violation, including a reasonable attorney fee.may take any

460

action authorized by Rule 11 or Rule 37(e).

461

(h) Deposition where action pending in another state. Any party to an action or

462

proceeding in another state may take the deposition of any person within this state, in

463

the same manner and subject to the same conditions and limitations as if such action or

464

proceeding were pending in this state, provided that in order to obtain a subpoena the

465

notice of the taking of such deposition shall be filed with the clerk of the court of the

466

county in which the person whose deposition is to be taken resides or is to be served,

467

and provided further that all matters arising during the taking of such deposition which

468

(f) Filing. Except as required by thethese rules are required to be submitted to the court

469

shall be submitted to the court in the county where the deposition is being taken.

470

(i) Filing.

471

(i)(1) Unless otherwiseor ordered by the court, a party shall not file disclosures or

472

requestswith the court a disclosure, a request for discovery with the courtor a response

473

to a request for discovery, but shall file only the original certificate of service stating that

474

the disclosures or requests for discovery have been served on the other parties and the

475

date of service. Unless otherwise ordered by the court, a party shall not file a response

476

to a request for discovery with the court, but shall file only the original certificate of

477

service stating that thedisclosure, request for discovery or response has been served on

478

the other parties and the date of service. Except as provided in Rule 30(f)(1), Rule 32 or

479

unless otherwise ordered by the court, depositions shall not be filed with the court.

480

(i)(2) A party filing a motion under subdivision (c) or a motion under Rule 37(a) shall

481

attach to the motion a copy of the request for discovery or the response which is at

482

issue.

483

Advisory Committee Notes

484

Disclosure Requirements and Timing. Rule 26(a)(1). The 2011 amendments seek to

485

reduce discovery costs by requiring each party to produce, at an early stage in the case,

486

and without a discovery request, all of the documents and physical evidence the party

487

may offer in its case-in-chief and the names of witnesses the party may call in its case-

Rule 26.

Draft: April 28, 2011

488

in-chief, with a description of their expected testimony. In this respect, the amendments

489

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

490

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

491

fact witness the party may call in its case-in-chief and a summary of the witness’s

492

expected testimony, a copy of all documents the party may offer in its case-in-chief, and

493

all documents to which a party refers in its pleadings.

494

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

495

proper purpose, additional witnesses, documents, and other information will be

496

obtained. The scope and the level of detail required in the initial Rule 26(a)(1)

497

disclosures should be viewed in light of this reality. A party, for example, is not required

498

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

499

the witness’s expected testimony. For witnesses outside a party’s control, it is expected

500

that less information would be known at the beginning of a case and therefore any

501

summary of their expected testimony would necessarily be limited to what the witness is

502

reasonably expected to testify about. Additionally, the summary of the witness’s

503

expected testimony should be just that – a summary. The rule does not require prefiled

504

testimony or detailed descriptions of everything a witness might say at trial. On the

505

other hand, it requires more than the the broad, conclusory statements that often were

506

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

507

events in question” or “The witness will testify on causation.”). The intent of this

508

requirement is to give the other side basic information that can be used to determine the

509

subjects about which the witness is expected to testify at trial, to determine the

510

witness’s relative importance to disputed issues in the case, and to enable the opposing

511

party to determine if the witness is someone who should be interviewed (if not a party)

512

or deposed, or from whom additional information otherwise should be obtained. This

513

information is important because of the other discovery limits contained in the 2011

514

amendments, particularly the limits on depositions. Likewise, the documents that

515

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

516

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

517

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

518

to provide documents and witness information is a continuing one, and disclosures must

Rule 26.

Draft: April 28, 2011

519

be promptly supplemented as new evidence and witnesses become known as the case

520

progresses.

521

The amendments also require parties to provide more information about damages

522

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

523

Early disclosure of damages information is important. Among other things, it is a critical

524

factor in determining proportionality. The committee recognizes that damages often

525

require additional discovery, and typically are the subject of expert testimony. The Rule

526

is not intended to require expert disclosures at the outset of a case. At the same time,

527

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

528

should make a good faith attempt to compute damages to the extent it is possible to do

529

so and must in any event provide all discoverable information on the subject, including

530

materials related to the nature and extent of the damages.

531

The penalty for failing to make timely disclosures is that the evidence may not be

532

used in the party’s case-in-chief. To make the disclosure requirement meaningful, and

533

to discourage sandbagging, parties must know that if they fail to disclose important

534

information that is helpful to their case, they will not be able to use that information at

535

trial. The courts will be expected to enforce them unless the failure is harmless or the

536

party shows good cause for the failure.

537

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

538

Because the plaintiff controls when it brings the action, plaintiffs must make their

539

disclosures within 14 days after service of the first answer. A defendant is required to

540

make its disclosures within 28 days after the plaintiff’s first disclosure or after that

541

defendant’s appearance, whichever is later. The purpose of early disclosure is to have

542

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

543

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

544

what additional discovery is necessary and proportional.

545

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

546

deadlines for completing fact discovery, are keyed to the filing of an answer. If a

547

defendant files a motion to dismiss or other Rule 12(b) motion in lieu of an answer,

548

these time periods normally would be not begin to run until that motion is resolved.

Rule 26.

549

Draft: April 28, 2011

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

550

were exempt from the mandatory disclosure requirements. Specifically, the

551

amendments eliminate the prior exemption for contract actions in which the amount

552

claimed is $20,000 or less, and actions in which any party is proceeding pro se. In the

553

committee’s view, these types of actions will benefit from the early disclosure

554

requirements and the overall reduced cost of discovery.

555

Expert Disclosures and Timing. Rule 26(a)(3). Expert discovery has become an

556

ever-increasing component of discovery cost. The prior rules sought to eliminate some

557

of these costs by requiring the written disclosure of the expert’s opinions and other

558

background information. However, because the expert was not required to sign these

559

disclosures, and because experts often were allowed to deviate from the opinions

560

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

561

would not offer “surprise” testimony at trial, thereby increasing rather than decreasing

562

the overall cost. The amendments seek to remedy this and other costs associated with

563

expert discovery by, among other things, allowing the opponent to choose either a

564

deposition of the expert or a written report, but not both; in the case of written reports,

565

requiring more comprehensive disclosures, signed by the expert, and making clear that

566

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

567

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

568

that protects from discovery most communications between an attorney and retained

569

expert. Discovery of expert opinions and testimony is automatic under Rule 26(a)(3) and

570

parties are not required to serve interrogatories or use other discovery devices to obtain

571

this information.

572

The amendments also address the issue of the “non-retained” expert. Their

573

expected testimony must be disclosed and they are subject to depositions similar to a

574

fact witness.

575

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

576

burden of proof on the issue for which expert testimony will be offered going first. Within

577

seven days after the close of fact discovery, that party must disclose: (i) the expert’s

578

curriculum vitae identifying the expert’s qualifications, publications, and prior testimony;

579

(ii) compensation information; (iii) a brief summary of the opinions the expert will offer;

Rule 26.

Draft: April 28, 2011

580

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

581

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

582

expert has prepared summaries of data, spreadsheets, charts, tables, or similar

583

materials, they should be included. If the expert has used software programs to make

584

calculations or otherwise summarize or organize data, that information and underlying

585

formulas should be provided in native form so it can be analyzed and understood. To

586

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

587

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

588

experts frequently will prepare demonstrative exhibits or other aids to illustrate the

589

expert’s testimony at trial, and the costs for preparing these materials can be

590

substantial. For that reason, these types of demonstrative aids may be prepared and

591

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

592

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

593

elect either a deposition or a written report from the expert. A deposition is limited to

594

four hours, which is not included in the deposition hours under Rule 26(c)(5), and the

595

party taking it must pay the expert’s hourly fee for attending the deposition. If a party

596

elects a written report, the expert must provide a signed report containing a complete

597

statement of all opinions the expert will express and the basis and reasons for them.

598

The intent is not to require a verbatim transcript of exactly what the expert will say at

599

trial; instead the expert must fairly disclose the substance of and basis for each opinion

600

the expert will offer. The expert may not testify in a party’s case in chief concerning any

601

matter that is not fairly disclosed in the report. To achieve the goal of making reports a

602

reliable substitute for depositions, courts are expected to enforce this requirement. If a

603

party elects a deposition, rather than a report, it is up to the party to ask the necessary

604

questions to “lock in” the expert’s testimony. But the expert is expected to be fully

605

prepared on all aspects of his/her trial testimony at the time of the deposition and may

606

not leave the door open for additional testimony by qualifying answers to deposition

607

questions.

608

The report or deposition must be completed within 28 days after the election is

609

made. After this, the party who does not bear the burden of proof on the issue for which

610

expert testimony is offered must make its corresponding disclosures and the opposing

Rule 26.

Draft: April 28, 2011

611

party may then elect either a deposition or a written report. Under the deadlines

612

contained in the rules, expert discovery should take less than three months to complete.

613

However, as with the other discovery rules, these deadlines can be altered by

614

stipulation of the parties or order of the court.

615

The amendments also address the issue of testimony from experts other than those

616

who are retained or specially employed to provide expert testimony, or whose duties as

617

an employee regularly involve giving expert testimony, such as treating physicians,

618

police officers, or accident investigators. This issue was addressed by the Supreme

619

Court in Drew v. Lee, 2011 UT 15, wherein the court held that reports under the prior

620

version of Rule 26(a)(3) are not required for treating physicians.

621

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

622

offered from fact witnesses. First, there is often not a clear line between fact and expert

623

testimony. Many fact witnesses have scientific, technical or other specialized

624

knowledge, and their testimony about the events in question often will cross into the

625

area of expert testimony. The rules are not intended to erect artificial barriers to the

626

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

627

the control of the party who plans to call them at trial. These witnesses may not be

628

cooperative, and may not be willing to discuss opinions they have with counsel. Where

629

this is the case, disclosures will necessarily be more limited. On the other hand,

630

consistent with the overall purpose of the 2011 amendments, a party should receive

631

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

632

they can plan their case accordingly. In an effort to strike an appropriate balance, the

633

rules require that such witnesses be identified and the information about their

634

anticipated testimony should include that which is required under Rule 26(a)(1)(A)(ii)

635

which should include any opinion testimony that a party expects to elicit from them at

636

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

637

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

638

for the witness. And if that disclosure is made in advance of the witness’s deposition,

639

those opinions should be explored in the deposition and not in a separate expert

640

deposition. Rule 26(a)(3)(D) and 26(a)(1)(A)(ii) are not intended to elevate form over

641

substance – all they require is that a party fairly inform its opponent that opinion

Rule 26.

Draft: April 28, 2011

642

testimony may be offered from a particular witness. And because a party who expects

643

to offer this testimony normally cannot compel such a witness to prepare a written

644

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

645

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

646

draft expert reports and, with limited exception, communications between an attorney

647

and an expert. These changes are modeled after the recent changes to the Federal

648

Rules of Civil Procedure and are intended to address the unnecessary and costly

649

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

650

discovery, and to reduce “satellite litigation” over such issues.

651

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

652

governing the scope of discovery. Simply stated, it means that the cost of discovery

653

should be proportional to what is at stake in the litigation.

654

In the past, the scope of discovery was governed by “relevance” or the “likelihood to

655

lead to discovery of admissible evidence.” These broad standards may have secured

656

just results by allowing a party to discover all facts relevant to the litigation. However,

657

they did little to advance two equally important objectives of the rules of civil

658

procedure—the speedy and inexpensive resolution of every action. Accordingly, the

659

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

660

proportionality standards in subpart (b)(1).

661

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

662

discovery methods if it determined that “the discovery was unduly burdensome or

663

expensive, taking into account the needs of the case, the amount in controversy,

664

limitations on the parties’ resources, and the importance of the issues at stake in the

665

litigation.” The Federal Rules of Civil Procedure contains a similar provision. See Fed.

666

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

667

either under the Utah rules or federal rules.

668

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

669

proving that a discovery request was not proportional. The new rule changes the burden

670

of proof. Today, the party seeking discovery beyond the scope of “standard” discovery

671

has the burden of showing that the request is “relevant to the claim or defense of any

672

party” and that the request satisfies the standards of proportionality

Rule 26.

Draft: April 28, 2011

673

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

674

Ideally, rules of procedure should be crafted to promote predictability for litigants. Rules

675

should limit the need to resort to judicial oversight. Tiered standard discovery seeks to

676

achieve these ends. The “one-size-fits-all” system is rejected. Tiered discovery signals

677

to judges, attorneys, and parties the amount of discovery which by rule is deemed

678

proportional for cases with different amounts in controversy.

679

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

680

inform procedure cannot eliminate uncertainty. Ultimately, the trial court has broad

681

discretion in deciding whether a discovery request is proportional. The proportionality

682

standards in subpart (b)(2) and the discovery tiers in subpart (c) mitigate uncertainty by

683

guiding that discretion. The proper application of the proportionality standards will be

684

defined over time by trial and appellate courts.

685

Standard and Extraordinary Discovery. Rule 26(c). As a counterpart to requiring

686

more detailed disclosures under Rule 26(a), the 2011 amendments place new

687

limitations on additional discovery the parties may conduct. Because the committee

688

expects the enhanced disclosure requirements will automatically permit each party to

689

learn the witnesses and evidence the opposing side will offer in its case-in-chief,

690

additional discovery should serve the more limited function of permitting parties to find

691

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

692

helpful, to the opponent’s case.

693

Rule 26(c) provides for three separate “tiers” of limited, “standard” discovery that are

694

presumed to be proportional to the amount and issues in controversy in the action, and

695

that the parties may conduct as a matter of right. An aggregation of all damages sought

696

by all parties in an action dictates the applicable tier of standard discovery, whether

697

such damages are sought by way of a complaint, counterclaim, or otherwise. The tiers

698

of standard discovery are set forth in a chart that is embedded in the body of the rule

699

itself. “Tier 1” describes a minimal amount of standard discovery that is presumed

700

proportional for cases involving damages of $50,000 or less. “Tier 2” sets forth larger

701

limits on standard discovery that are applicable in cases involving damages above

702

$50,000 but less than $300,000. Finally, “Tier 3” prescribes still greater standard

703

discovery for actions involving damages in excess of $300,000. The tiers also provide

Rule 26.

Draft: April 28, 2011

704

presumptive limitations on the time within which standard discovery should be

705

completed, which limitations similarly increase with the amount of damages at issue.

706

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

707

trial. Actions for non-monetary relief, such as injunctive relief, are subject to the

708

standard discovery limitations of Tier 2, absent an accompanying monetary claim of

709

$300,000 or more, in which case Tier 3 applies. The committee determined these

710

standard discovery limitations based on the expectation that for the majority of cases

711

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

712

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

713

involving the respective amounts of damages.

714

Despite the expectation that standard discovery according to the applicable tier

715

should be adequate in the typical case, the 2011 amendments contemplate there will be

716

some cases for which standard discovery is not sufficient or appropriate. In such cases,

717

parties may conduct additional discovery that is shown to be consistent with the

718

principle of proportionality. There are two ways to obtain such additional discovery. The

719

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

720

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

721

additional discovery is proportional to what is at stake in the litigation and counsel for

722

each party certifies that the party has reviewed and approved a budget for additional

723

discovery. Such a stipulation should be filed before the close of the standard discovery

724

time limit, but only after the completion of standard discovery available under the rule. If

725

these conditions are met, the Court will not second-guess the parties and their counsel

726

and must approve the stipulation.

727

The second method to obtain additional discovery is by motion. The committee

728

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

729

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

730

among other categories, large and factually complex cases and cases in which there is

731

a significant disparity in the parties’ access to information, such that one party

732

legitimately has a greater need than the other party for additional discovery in order to

733

prepare properly for trial. To prevent a party from taking advantage of this situation, the

734

2011 amendments allow any party to move the Court for additional discovery. As with

Rule 26.

Draft: April 28, 2011

735

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

736

discovery should do so before the close of the standard discovery time limit, but only

737

after the moving party has completed the standard discovery available to it under the

738

rule. By taking advantage of this discovery, counsel should be better equipped to

739

articulate for the court what additional discovery is needed and why. The party making

740

such a motion must demonstrate that the additional discovery is proportional and certify

741

that the party has reviewed and approved a discovery budget. The burden to show the

742

need for additional discovery, and to demonstrate relevance and proportionality, always

743

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

744

discovery is appropriate do exist, and it is important for courts to recognize they can and

745

should permit additional discovery in appropriate cases, commensurate with the

746

complexity and magnitude of the dispute.

747

Protective Order Language Moved to Rule 37. The 2011 amendments delete in its

748

entirety the prior language of Rule 26(c) governing motions for protective orders. The

749

substance of that language is now found in Rule 37. The committee determined it was

750

preferable to cover motions to compel, motions for protective orders, and motions for

751

discovery sanctions in a single rule, rather than two separate rules. Accordingly, Rule

752

37 now governs these motions and orders.

753

Consequences of Failure to Disclose. Rule 26(d). If a party fails to disclose or to

754

supplement timely its discovery responses, that party cannot use the undisclosed

755

witness, document, or material at any hearing or trial, absent proof that non-disclosure

756

was harmless or justified by good cause. More complete disclosures increase the

757

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

758

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

759

to make complete disclosures. This is true only if trial courts hold parties to this

760

standard. Accordingly, although a trial court retains discretion to determine how properly

761

to address this issue in a given case, the usual and expected result should be exclusion

762

of the evidence.

763