Effective November 1, 2021
Court rules
Ask Donna
What actually matters in this document.
Text
URCP026. Amend.
Redline
Effective November 1, 2021
1
Rule 26. General provisions governing disclosure and discovery.
2
(a) Disclosure. This rule applies unless changed or supplemented by a rule governing
3
disclosure and discovery in a practice area.
4
(1) Initial disclosures. Except in cases exempt under paragraph (a)(3), a party
5
shallmust, without waiting for a discovery request, serve on the other parties:
6
(A) the name and, if known, the address and telephone number of:
7
(i) each individual likely to have discoverable information supporting its
8
claims or defenses, unless solely for impeachment, identifying the subjects of
9
the information; and
10
(ii) each fact witness the party may call in its case-in-chief and, except for an
11
adverse party, a summary of the expected testimony;
12
(B) a copy of all documents, data compilations, electronically stored information,
13
and tangible things in the possession or control of the party that the party may
14
offer in its case-in-chief, except charts, summaries, and demonstrative exhibits
15
that have not yet been prepared and must be disclosed in accordance with
16
paragraph (a)(5);
17
(C) a computation of any damages claimed and a copy of all discoverable
18
documents or evidentiary material on which such computation is based,
19
including materials about the nature and extent of injuries suffered;
20
(D) a copy of any agreement under which any person may be liable to satisfy
21
part or all of a judgment or to indemnify or reimburse for payments made to
22
satisfy the judgment; and
23
(E) a copy of all documents to which a party refers in its pleadings.
24
(2) Timing of initial disclosures. The disclosures required by paragraph (a)(1)
25
shallmust be served on the other parties:
URCP026. Amend.
Redline
Effective November 1, 2021
26
(A) by the a plaintiff within 14 days after the filing of the first answer to the that
27
plaintiff’s complaint; and
28
(B) by the a defendant within 42 days after the filing of the that defendant’s first
29
answer to the complaint or within 28 days after that defendant’s appearance,
30
whichever is later.
31
(3) Exemptions.
32
(A) Unless otherwise ordered by the court or agreed to by the parties, the
33
requirements of paragraph (a)(1) do not apply to actions:
34
(i) for judicial review of adjudicative proceedings or rule making proceedings
35
of an administrative agency;
36
(ii) governed by Rule 65B or Rule 65C;
37
(iii) to enforce an arbitration award;
38
(iv) for water rights general adjudication under Title 73, Chapter 4,
39
Determination of Water Rights.
40
(B) In an exempt action, the matters subject to disclosure under paragraph (a)(1)
41
are subject to discovery under paragraph (b).
42
(4) Expert testimony.
43
(A) Disclosure of retained expert testimony. A party shallmust, without waiting
44
for a discovery request, serve on the other parties the following information
45
regarding any person who may be used at trial to present evidence under Rule
46
702 of the Utah Rules of Evidence and who is retained or specially employed to
47
provide expert testimony in the case or whose duties as an employee of the party
48
regularly involve giving expert testimony: (i) the expert’s name and
49
qualifications, including a list of all publications authored within the preceding
50
10 years, and a list of any other cases in which the expert has testified as an
51
expert at trial or by deposition within the preceding four years, (ii) a brief
URCP026. Amend.
Redline
Effective November 1, 2021
52
summary of the opinions to which the witness is expected to testify, (iii) all the
53
facts, data, and other information specific to the case that will be relied upon by
54
the witness in forming those opinions, and (iv) the compensation to be paid for
55
the witness’s study and testimony.
56
(B) Limits on expert discovery. Further discovery may be obtained from an
57
expert witness either by deposition or by written report. A deposition shallmust
58
not exceed four hours and the party taking the deposition shallmust pay the
59
expert’s reasonable hourly fees for attendance at the deposition. A report
60
shallmust be signed by the expert and shallmust contain a complete statement of
61
all opinions the expert will offer at trial and the basis and reasons for them. Such
62
an expert may not testify in a party’s case-in-chief concerning any matter not
63
fairly disclosed in the report. The party offering the expert shallmust pay the
64
costs for the report.
65
(C) Timing for expert discovery.
66
(i) The party who bears the burden of proof on the issue for which expert
67
testimony is offered shallmust serve on the other parties the information
68
required by paragraph (a)(4)(A) within seven 14 days after the close of fact
69
discovery. Within seven 14 days thereafter, the party opposing the expert
70
may serve notice electing either a deposition of the expert pursuant to
71
paragraph (a)(4)(B) and Rule 30, or a written report pursuant to paragraph
72
(a)(4)(B). The deposition shallmust occur, or the report shallmust be served on
73
the other parties, within 28 42 days after the election is served on the other
74
parties. If no election is served on the other parties, then no further discovery
75
of the expert shallmust be permitted.
76
(ii) The party who does not bear the burden of proof on the issue for which
77
expert testimony is offered shallmust serve on the other parties the
78
information required by paragraph (a)(4)(A) within 14 seven days after the
79
later of (A) the date on which the election disclosure under paragraph
URCP026. Amend.
Redline
Effective November 1, 2021
80
(a)(4)(C)(i) is due, or (B) receipt service of the written report or the taking of
81
the expert’s deposition pursuant to paragraph (a)(4)(C)(i). Within seven 14
82
days thereafter, the party opposing the expert may serve notice electing either
83
a deposition of the expert pursuant to paragraph (a)(4)(B) and Rule 30, or a
84
written report pursuant to paragraph (a)(4)(B). The deposition shallmust
85
occur, or the report shallmust be served on the other parties, within 28 42
86
days after the election is served on the other parties. If no election is served
87
on the other parties, then no further discovery of the expert shallmust be
88
permitted.
89
(iii) If the party who bears the burden of proof on an issue wants to designate
90
rebuttal expert witnesses, it shallmust serve on the other parties the
91
information required by paragraph (a)(4)(A) within 14 seven days after the
92
later of (A) the date on which the election under paragraph (a)(4)(C)(ii) is due,
93
or (B) receipt service of the written report or the taking of the expert’s
94
deposition pursuant to paragraph (a)(4)(C)(ii). Within seven 14 days
95
thereafter, the party opposing the expert may serve notice electing either a
96
deposition of the expert pursuant to paragraph (a)(4)(B) and Rule 30, or a
97
written report pursuant to paragraph (a)(4)(B). The deposition shallmust
98
occur, or the report shallmust be served on the other parties, within 28 42
99
days after the election is served on the other parties. If no election is served
100
on the other parties, then no further discovery of the expert shallmust be
101
permitted. The court may preclude an expert disclosed only as a rebuttal
102
expert from testifying in the case in chief.
103
(D) Multiparty actions. In multiparty actions, all parties opposing the expert
104
must agree on either a report or a deposition. If all parties opposing the expert do
105
not agree, then further discovery of the expert may be obtained only by
106
deposition pursuant to paragraph (a)(4)(B) and Rule 30.
URCP026. Amend.
Redline
Effective November 1, 2021
107
(E) Summary of non-retained expert testimony. If a party intends to present
108
evidence at trial under Rule 702 of the Utah Rules of Evidence from any person
109
other than an expert witness who is retained or specially employed to provide
110
testimony in the case or a person whose duties as an employee of the party
111
regularly involve giving expert testimony, that party must serve on the other
112
parties a written summary of the facts and opinions to which the witness is
113
expected to testify in accordance with the deadlines set forth in paragraph
114
(a)(4)(C). Such a witness cannot be required to provide a report pursuant to
115
paragraph (a)(4)(B). A deposition of such a witness may not exceed four hours
116
and, unless manifest injustice would result, the party taking the deposition must
117
pay the expert's reasonable hourly fees for attendance at the deposition.
118
(5) Pretrial disclosures.
119
(A) A party shallmust, without waiting for a discovery request, serve on the
120
other parties:
121
(i) the name and, if not previously provided, the address and telephone
122
number of each witness, unless solely for impeachment, separately
123
identifying witnesses the party will call and witnesses the party may call;
124
(ii) the name of witnesses whose testimony is expected to be presented by
125
transcript of a deposition;
126
(iii) and designations of the proposed deposition testimonya copy of the
127
transcript with the proposed testimony designated; and
128
(iiiiv) a copy of each exhibit, including charts, summaries, and demonstrative
129
exhibits, unless solely for impeachment, separately identifying those which
130
the party will offer and those which the party may offer.
131
(B) Disclosure required by paragraph (a)(5)(A) shallmust be served on the other
132
parties at least 28 days before trial. Disclosures required by paragraph (a)(5)(A)(i)
133
and (a)(5)(A)(ii) shallmust also be filed on the date that they are served. At least
URCP026. Amend.
Redline
Effective November 1, 2021
134
14 days before trial, a party shallmust serve and file any counter designations of
135
deposition testimony, and any objections and grounds for the objections to the
136
use of any deposition, witness, and or to the admissibility of exhibits if the
137
grounds for the objection are apparent before trial. Other than objections under
138
Rules 402 and 403 of the Utah Rules of Evidence, other objections not listed are
139
waived unless excused by the court for good cause.
140
(6) Form of disclosure and discovery production. Rule 34 governs the form in
141
which all documents, data compilations, electronically stored information, tangible
142
things, and evidentiary material should be produced under this Rule.
143
(b) Discovery scope.
144
(1) In general. Parties may discover any matter, not privileged, which is relevant to
145
the claim or defense of any party if the discovery satisfies the standards of
146
proportionality set forth below. Privileged matters that are not discoverable or
147
admissible in any proceeding of any kind or character include all information in any
148
form provided during and created specifically as part of a request for an
149
investigation, the investigation, findings, or conclusions of peer review, care review,
150
or quality assurance processes of any organization of health care providers as
151
defined in the Utah Health Care Malpractice Act for the purpose of evaluating care
152
provided to reduce morbidity and mortality or to improve the quality of medical
153
care, or for the purpose of peer review of the ethics, competence, or professional
154
conduct of any health care provider.
155
(2) Proportionality. Discovery and discovery requests are proportional if:
156
(A) the discovery is reasonable, considering the needs of the case, the amount in
157
controversy, the complexity of the case, the parties' resources, the importance of
158
the issues, and the importance of the discovery in resolving the issues;
159
(B) the likely benefits of the proposed discovery outweigh the burden or expense;
URCP026. Amend.
Redline
Effective November 1, 2021
160
(C) the discovery is consistent with the overall case management and will further
161
the just, speedy, and inexpensive determination of the case;
162
(D) the discovery is not unreasonably cumulative or duplicative;
163
(E) the information cannot be obtained from another source that is more
164
convenient, less burdensome, or less expensive; and
165
(F) the party seeking discovery has not had sufficient opportunity to obtain the
166
information by discovery or otherwise, taking into account the parties’ relative
167
access to the information.
168
(3) Burden. The party seeking discovery always has the burden of showing
169
proportionality and relevance. To ensure proportionality, the court may enter orders
170
under Rule 37.
171
(4) Electronically stored information. A party claiming that electronically stored
172
information is not reasonably accessible because of undue burden or cost shallmust
173
describe the source of the electronically stored information, the nature and extent of
174
the burden, the nature of the information not provided, and any other information
175
that will enable other parties to evaluate the claim.
176
(5) Trial preparation materials. A party may obtain otherwise discoverable
177
documents and tangible things prepared in anticipation of litigation or for trial by or
178
for another party or by or for that other party's representative (including the party’s
179
attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that
180
the party seeking discovery has substantial need of the materials and that the party
181
is unable without undue hardship to obtain substantially equivalent materials by
182
other means. In ordering discovery of such materials, the court shallmust protect
183
against disclosure of the mental impressions, conclusions, opinions, or legal theories
184
of an attorney or other representative of a party.
185
(6) Statement previously made about the action. A party may obtain without the
186
showing required in paragraph (b)(5) a statement concerning the action or its subject
URCP026. Amend.
Redline
Effective November 1, 2021
187
matter previously made by that party. Upon request, a person not a party may
188
obtain without the required showing a statement about the action or its subject
189
matter previously made by that person. If the request is refused, the person may
190
move for a court order under Rule 37. A statement previously made is (A) a written
191
statement signed or approved by the person making it, or (B) a stenographic,
192
mechanical, electronic, or other recording, or a transcription thereof, which is a
193
substantially verbatim recital of an oral statement by the person making it and
194
contemporaneously recorded.
195
(7) Trial preparation; experts.
196
(A) Trial-preparation protection for draft reports or disclosures. Paragraph
197
(b)(5) protects drafts of any report or disclosure required under paragraph (a)(4),
198
regardless of the form in which the draft is recorded.
199
(B) Trial-preparation protection for communications between a party’s
200
attorney and expert witnesses. Paragraph (b)(5) protects communications
201
between the party’s attorney and any witness required to provide disclosures
202
under paragraph (a)(4), regardless of the form of the communications, except to
203
the extent that the communications:
204
(i) relate to compensation for the expert’s study or testimony;
205
(ii) identify facts or data that the party’s attorney provided and that the expert
206
considered in forming the opinions to be expressed; or
207
(iii) identify assumptions that the party’s attorney provided and that the
208
expert relied on in forming the opinions to be expressed.
209
(C) Expert employed only for trial preparation. Ordinarily, a party may not, by
210
interrogatories or otherwise, discover facts known or opinions held by an expert
211
who has been retained or specially employed by another party in anticipation of
212
litigation or to prepare for trial and who is not expected to be called as a witness
213
at trial. A party may do so only:
URCP026. Amend.
Redline
Effective November 1, 2021
214
(i) as provided in Rule 35(b); or
215
(ii) on showing exceptional circumstances under which it is impracticable for
216
the party to obtain facts or opinions on the same subject by other means.
217
(8) Claims of privilege or protection of trial preparation materials.
218
(A) Information withheld. If a party withholds discoverable information by
219
claiming that it is privileged or prepared in anticipation of litigation or for trial,
220
the party shallmust make the claim expressly and shallmust describe the nature
221
of the documents, communications, or things not produced in a manner that,
222
without revealing the information itself, will enable other parties to evaluate the
223
claim.
224
(B) Information produced. If a party produces information that the party claims
225
is privileged or prepared in anticipation of litigation or for trial, the producing
226
party may notify any receiving party of the claim and the basis for it. After being
227
notified, a receiving party must promptly return, sequester, or destroy the
228
specified information and any copies it has and may not use or disclose the
229
information until the claim is resolved. A receiving party may promptly present
230
the information to the court under seal for a determination of the claim. If the
231
receiving party disclosed the information before being notified, it must take
232
reasonable steps to retrieve it. The producing party must preserve the
233
information until the claim is resolved.
234
(c) Methods, sequence, and timing of discovery; tiers; limits on standard discovery;
235
extraordinary discovery.
236
(1) Methods of discovery. Parties may obtain discovery by one or more of the
237
following methods: depositions upon oral examination or written questions; written
238
interrogatories; production of documents or things or permission to enter upon land
239
or other property, for inspection and other purposes; physical and mental
URCP026. Amend.
Redline
Effective November 1, 2021
240
examinations; requests for admission; and subpoenas other than for a court hearing
241
or trial.
242
(2) Sequence and timing of discovery. Methods of discovery may be used in any
243
sequence, and the fact that a party is conducting discovery shallmust not delay any
244
other party's discovery. Except for cases exempt under paragraph (a)(3), a party may
245
not seek discovery from any source before that party’s initial disclosure obligations
246
are satisfied.
247
(3) Definition of tiers for standard discovery. Actions claiming $50,000 or less in
248
damages are permitted standard discovery as described for Tier 1. Actions claiming
249
more than $50,000 and less than $300,000 in damages are permitted standard
250
discovery as described for Tier 2. Actions claiming $300,000 or more in damages are
251
permitted standard discovery as described for Tier 3. Absent an accompanying
252
damage claim for more than $300,000, actions claiming non-monetary relief are
253
permitted standard discovery as described for Tier 2. Domestic relations actions are
254
permitted standard discovery as described for Tier 4.
255
(4) Definition of damages. For purposes of determining standard discovery, the
256
amount of damages includes the total of all monetary damages sought (without
257
duplication for alternative theories) by all parties in all claims for relief in the
258
original pleadings.
259
(5) Limits on standard fact discovery. Standard fact discovery per side (plaintiffs
260
collectively, defendants collectively, and third-party defendants collectively) in each
261
tier is as follows. The days to complete standard fact discovery are calculated from
262
the date the first defendant’s first disclosure is due and do not include expert
263
discovery under paragraphs (a)(4)(C) and (D).
Amount
Tier Damages
Rule
33
Interrogatories
Total Fact including all
of Deposition discrete
Hours
subparts
Days to
Rule
34 Rule
36 Complete
Requests
Requests
Standard
for
for
Fact
Production Admission Discovery
URCP026. Amend.
1
2
3
4
$50,000
or
less
More
than
$50,000 and
less
than
$300,000 or
nonmonetary
relief
$300,00
or
more
Domestic
relations
actions
Redline
Effective November 1, 2021
3
0
5
5
120
15
10
10
10
180
30
20
20
20
210
4
10
10
10
90
264
265
(6) Extraordinary discovery. To obtain discovery beyond the limits established in
266
paragraph (c)(5), a party shallmust file:
267
(A) before the close of standard discovery and after reaching the limits of
268
standard discovery imposed by these rules, file a stipulated statement that
269
extraordinary discovery is necessary and proportional under paragraph (b)(2)
270
and, for each party represented by an attorney, a statement that the attorney that
271
each party has reviewed and approved a discovery budget consulted with the
272
client about the request for extraordinary discovery; or
273
(B) before the close of standard discovery and after reaching the limits of
274
standard discovery imposed by these rules, file a request for extraordinary
275
discovery under Rule 37(a); or
276
(C) obtain an expanded discovery schedule under Rule 100A.
277
(d) Requirements for disclosure or response; disclosure or response by an
278
organization; failure to disclose; initial and supplemental disclosures and responses.
279
(1) A party shallmust make disclosures and responses to discovery based on the
280
information then known or reasonably available to the party.
URCP026. Amend.
Redline
Effective November 1, 2021
281
(2) If the party providing disclosure or responding to discovery is a corporation,
282
partnership, association, or governmental agency, the party shallmust act through
283
one or more officers, directors, managing agents, or other persons, who shallmust
284
make disclosures and responses to discovery based on the information then known
285
or reasonably available to the party.
286
(3) A party is not excused from making disclosures or responses because the party
287
has not completed investigating the case, or because the party challenges the
288
sufficiency of another party's disclosures or responses, or because another party has
289
not made disclosures or responses.
290
(4) If a party fails to disclose or to supplement timely a disclosure or response to
291
discovery, that party may not use the undisclosed witness, document, or material at
292
any hearing or trial unless the failure is harmless or the party shows good cause for
293
the failure.
294
(5) If a party learns that a disclosure or response is incomplete or incorrect in some
295
important way, the party must timely serve on the other parties the additional or
296
correct information if it has not been made known to the other parties. The
297
supplemental disclosure or response must state why the additional or correct
298
information was not previously provided.
299
(e) Signing discovery requests, responses, and objections. Every disclosure, request
300
for discovery, response to a request for discovery, and objection to a request for
301
discovery shallmust be in writing and signed by at least one attorney of record or by the
302
party if the party is not represented. The signature of the attorney or party is a
303
certification under Rule 11. If a request or response is not signed, the receiving party
304
does not need to take any action with respect to it. If a certification is made in violation
305
of the rule, the court, upon motion or upon its own initiative, may take any action
306
authorized by Rule 11 or Rule 37(b).
URCP026. Amend.
Redline
Effective November 1, 2021
307
(f) Filing. Except as required by these rules or ordered by the court, a party shallmust
308
not file with the court a disclosure, a request for discovery, or a response to a request for
309
discovery, but shallmust file only the certificate of service stating that the disclosure,
310
request for discovery, or response has been served on the other parties and the date of
311
service.
312
Advisory Committee Notes
313
Note Adopted 2011
314
Disclosure requirements and timing. Rule 26(a)(1).
315
Not all information will be known at the outset of a case. If discovery is serving its
316
proper purpose, additional witnesses, documents, and other information will be
317
identified. The scope and the level of detail required in the initial Rule 26(a)(1)
318
disclosures should be viewed in light of this reality. A party is not required to interview
319
every witness it ultimately may call at trial in order to provide a summary of the
320
witness’s expected testimony. As the information becomes known, it should be
321
disclosed. No summaries are required for adverse parties, including management level
322
employees of business entities, because opposing lawyers are unable to interview them
323
and their testimony is available to their own counsel. For uncooperative or hostile
324
witnesses any summary of expected testimony would necessarily be limited to the
325
subject areas the witness is reasonably expected to testify about. For example, defense
326
counsel may be unable to interview a treating physician, so the initial summary may
327
only disclose that the witness will be questioned concerning the plaintiff’s diagnosis,
328
treatment and prognosis. After medical records have been obtained, the summary may
329
be expanded or refined.
330
Subject to the foregoing qualifications, the summary of the witness’s expected testimony
331
should be just that– a summary. The rule does not require prefiled testimony or detailed
332
descriptions of everything a witness might say at trial. On the other hand, it requires
333
more than the broad, conclusory statements that often were made under the prior
334
version of Rule 26(a)(1)(e.g., “The witness will testify about the events in question” or
URCP026. Amend.
Redline
Effective November 1, 2021
335
“The witness will testify on causation.”). The intent of this requirement is to give the
336
other side basic information concerning the subjects about which the witness is
337
expected to testify at trial, so that the other side may determine the witness’s relative
338
importance in the case, whether the witness should be interviewed or deposed, and
339
whether additional documents or information concerning the witness should be sought.
340
See RJW Media Inc. v. Heath, 2017 UT App 34, ¶¶ 23-25, 392 P.3d 956. This information is
341
important because of the other discovery limits contained in Rule 26.
342
Likewise, the documents that should be provided as part of the Rule 26(a)(1) disclosures
343
are those that a party reasonably believes it may use at trial, understanding that not all
344
documents will be available at the outset of a case. In this regard, it is important to
345
remember that the duty to provide documents and witness information is a continuing
346
one, and disclosures must be promptly supplemented as new evidence and witnesses
347
become known as the case progresses.
348
Early disclosure of damages information is important. Among other things, it is a
349
critical factor in determining proportionality. The committee recognizes that damages
350
often require additional discovery, and typically are the subject of expert testimony. The
351
Rule is not intended to require expert disclosures at the outset of a case. At the same
352
time, the subject of damages should not simply be deferred until expert discovery.
353
Parties should make a good faith attempt to compute damages to the extent it is
354
possible to do so and must in any event provide all discoverable information on the
355
subject, including materials related to the nature and extent of the damages.
356
The penalty for failing to make timely disclosures is that the evidence may not be used
357
in the party’s case-in-chief. To make the disclosure requirement meaningful, and to
358
discourage sandbagging, parties must know that if they fail to disclose important
359
information that is helpful to their case, they will not be able to use that information at
360
trial. The courts will be expected to enforce them unless the failure is harmless or the
361
party shows good cause for the failure.
URCP026. Amend.
Redline
Effective November 1, 2021
362
The purpose of early disclosure is to have all parties present the evidence they expect to
363
use to prove their claims or defenses, thereby giving the opposing party the ability to
364
better evaluate the case and determine what additional discovery is necessary and
365
proportional.
366
Expert disclosures and timing. Rule 26(a)(3). Disclosure of the identity and subjects of
367
expert opinions and testimony is automatic under Rule 26(a)(3) and parties are not
368
required to serve interrogatories or use other discovery devices to obtain this
369
information.
370
Experts frequently will prepare demonstrative exhibits or other aids to illustrate the
371
expert’s testimony at trial, and the costs for preparing these materials can be substantial.
372
For that reason, these types of demonstrative aids may be prepared and disclosed later,
373
as part of the Rule 26(a)(4) pretrial disclosures when trial is imminent.
374
If a party elects a written report, the expert must provide a signed report containing a
375
complete statement of all opinions the expert will express and the basis and reasons for
376
them. The intent is not to require a verbatim transcript of exactly what the expert will
377
say at trial; instead the expert must fairly disclose the substance of and basis for each
378
opinion the expert will offer. The expert may not testify in a party’s case in chief
379
concerning any matter that is not fairly disclosed in the report. To achieve the goal of
380
making reports a reliable substitute for depositions, courts are expected to enforce this
381
requirement. If a party elects a deposition, rather than a report, it is up to the party to
382
ask the necessary questions to “lock in” the expert’s testimony. But the expert is
383
expected to be fully prepared on all aspects of his/her trial testimony at the time of the
384
deposition and may not leave the door open for additional testimony by qualifying
385
answers to deposition questions.
386
There are a number of difficulties inherent in disclosing expert testimony that may be
387
offered from fact witnesses. First, there is often not a clear line between fact and expert
388
testimony. Many fact witnesses have scientific, technical or other specialized
389
knowledge, and their testimony about the events in question often will cross into the
URCP026. Amend.
Redline
Effective November 1, 2021
390
area of expert testimony. The rules are not intended to erect artificial barriers to the
391
admissibility of such testimony. Second, many of these fact witnesses will not be within
392
the control of the party who plans to call them at trial. These witnesses may not be
393
cooperative, and may not be willing to discuss opinions they have with counsel. Where
394
this is the case, disclosures will necessarily be more limited. On the other hand,
395
consistent with the overall purpose of the 2011 amendments, a party should receive
396
advance notice if their opponent will solicit expert opinions from a particular witness so
397
they can plan their case accordingly. In an effort to strike an appropriate balance, the
398
rules require that such witnesses be identified and the information about their
399
anticipated testimony should include that which is required under Rule 26(a)(1)(A)(ii),
400
which should include any opinion testimony that a party expects to elicit from them at
401
trial. If a party has disclosed possible opinion testimony in its Rule 26(a)(1)(A)(ii)
402
disclosures, that party is not required to prepare a separate Rule 26 (a)(4)(E) disclosure
403
for the witness. And if that disclosure is made in advance of the witness’s deposition,
404
those opinions should be explored in the deposition and not in a separate expert
405
deposition. Otherwise, the timing for disclosure of non-retained expert opinions is the
406
same as that for retained experts under Rule 26(a)(4)(C) and depends on whether the
407
party has the burden of proof or is responding to another expert.
408
Scope of discovery—Proportionality. Rule 26(b). Proportionality is the principle
409
governing the scope of discovery. Simply stated, it means that the cost of discovery
410
should be proportional to what is at stake in the litigation.
411
In the past, the scope of discovery was governed by “relevance” or the “likelihood to
412
lead to discovery of admissible evidence.” These broad standards may have secured
413
just results by allowing a party to discover all facts relevant to the litigation. However,
414
they did little to advance two equally important objectives of the rules of civil
415
procedure—the speedy and inexpensive resolution of every action. Accordingly, the
416
former standards governing the scope of discovery have been replaced with the
417
proportionality standards in subpart (b)(1).
URCP026. Amend.
Redline
Effective November 1, 2021
418
The concept of proportionality is not new. The prior rule permitted the Court to limit
419
discovery methods if it determined that “the discovery was unduly burdensome or
420
expensive, taking into account the needs of the case, the amount in controversy,
421
limitations on the parties’ resources, and the importance of the issues at stake in the
422
litigation.” The Federal Rules of Civil Procedure contains a similar provision. See Fed.
423
R. Civ. P. 26(b)(2) (C).
424
Any system of rules which permits the facts and circumstances of each case to inform
425
procedure cannot eliminate uncertainty. Ultimately, the trial court has broad discretion
426
in deciding whether a discovery request is proportional. The proportionality standards
427
in subpart (b)(2) and the discovery tiers in subpart (c) mitigate uncertainty by guiding
428
that discretion. The proper application of the proportionality standards will be defined
429
over time by trial and appellate courts.
430
Standard and extraordinary discovery. Rule 26(c). As a counterpart to requiring more
431
detailed disclosures under Rule 26(a), the 2011 amendments place new limitations on
432
additional discovery the parties may conduct. Because the committee expects the
433
enhanced disclosure requirements will automatically permit each party to learn the
434
witnesses and evidence the opposing side will offer in its case-in-chief, additional
435
discovery should serve the more limited function of permitting parties to find
436
witnesses, documents, and other evidentiary materials that are harmful, rather than
437
helpful, to the opponent’s case.
438
Parties are expected to be reasonable and accomplish as much as they can during
439
standard discovery. A statement of discovery issues may result in additional discovery
440
and sanctions at the expense of a party who unreasonably fails to respond or otherwise
441
frustrates discovery. After the expiration of the applicable time limitation, a case is
442
presumed to be ready for trial. Actions for nonmonetary relief, such as injunctive relief,
443
are subject to the standard discovery limitations of Tier 2, absent an accompanying
444
monetary claim of $300,000 or more, in which case Tier 3 applies.
URCP026. Amend.
Redline
Effective November 1, 2021
445
Consequences of failure to disclose. Rule 26(d). If a party fails to disclose or to
446
supplement timely its discovery responses, that party cannot use the undisclosed
447
witness, document, or material at any hearing or trial, absent proof that non-disclosure
448
was harmless or justified by good cause. More complete disclosures increase the
449
likelihood that the case will be resolved justly, speedily, and inexpensively. Not being
450
able to use evidence that a party fails properly to disclose provides a powerful incentive
451
to make complete disclosures. This is true only if trial courts hold parties to this
452
standard. Accordingly, although a trial court retains discretion to determine how
453
properly to address this issue in a given case, the usual and expected result should be
454
exclusion of the evidence.
455
Legislative Note
456
Note adopted 2012
457
S.J.R. 15
458
(1) The amended language in paragraph (b)(1) is intended to incorporate long-standing
459
protections against discovery and admission into evidence of privileged matters
460
connected to medical care review and peer review into the Utah Rules of Civil
461
Procedure. These privileges, found in both Utah common law and statute, include
462
Sections 26-25-3, 58-13-4, and 58-13-5, UCA, 1953. The language is intended to ensure
463
the confidentiality of peer review, care review, and quality assurance processes and to
464
ensure that the privilege is limited only to documents and information created
465
specifically as part of the processes. It does not extend to knowledge gained or
466
documents created outside or independent of the processes. The language is not
467
intended to limit the court's existing ability, if it chooses, to review contested documents
468
in camera in order to determine whether the documents fall within the privilege. The
469
language is not intended to alter any existing law, rule, or regulation relating to the
470
confidentiality, admissibility, or disclosure of proceedings before the Utah Division of
471
Occupational and Professional Licensing. The Legislature intends that these privileges
URCP026. Amend.
Redline
Effective November 1, 2021
472
apply to all pending and future proceedings governed by court rules, including
473
administrative proceedings regarding licensing and reimbursement.
474
(2) The Legislature does not intend that the amendments to this rule be construed to
475
change or alter a final order concerning discovery matters entered on or before the
476
effective date of this amendment.
477
478
(3) The Legislature intends to give the greatest effect to its amendment, as legally
479
permissible, in matters that are pending on or may arise after the effective date of this
480
amendment, without regard to when the case was filed.
481
Effective date. Upon approval by a constitutional two-thirds vote of all members elected
482
to each house. [March 6, 2012]
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.