Effective Date: November 1, 2011
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Rule 26.
Effective Date: November 1, 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 subdivision (a)(2) and
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except as otherwise stipulated or directed by order,paragraph (a)(3), a party shall,
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without 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, except for
an adverse party, 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)(5);
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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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Effective Date: November 1, 2011
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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)(2) Exemptions.
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(a)(2)(A) The requirements of subdivision (a)(1) and subdivision (f) do not apply to
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actions:
(a)(2)(A)(i) based on contract in which the amount demanded in the pleadings is
$20,000 or less;
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(a)(2)(A)(ii(a)(1)(E) a copy of all documents to which a party refers in its pleadings.
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(a)(2) Timing of initial disclosures. The disclosures required by paragraph (a)(1)
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shall be made:
(a)(2)(A) by the plaintiff within 14 days after service of the first answer to the
complaint; and
(a)(2)(B) 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)(3) Exemptions.
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(a)(3)(A) Unless otherwise ordered by the court or agreed to by the parties, the
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requirements of paragraph (a)(1) do not apply to actions:
(a)(3)(A)(i) for judicial review of adjudicative proceedings or rule making proceedings
of an administrative agency;
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(a)(23)(A)(iiiii) governed by Rule 65B or Rule 65C;
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(a)(23)(A)(iviii) to enforce an arbitration award;
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(a)(23)(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)(23)(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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Effective Date: November 1, 2011
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(a)(34) Expert testimony.
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(a)(4)(A) Disclosure of expert testimony.
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(a)(3)(A) A party shall disclose to , without waiting for a discovery request, provide to
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the other parties the identity offollowing information regarding any person who may be
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used at trial to present evidence under Rules 702, 703, or 705 of the Utah Rules of
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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)(C) Unless otherwise stipulated(a)(4)(B) Limits on expert discovery. Further
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discovery may be obtained from an expert witness either by deposition or by written
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report. A deposition shall not exceed four hours and the parties or ordered by party
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taking the court,deposition shall pay the disclosures expert’s reasonable hourly fees for
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attendance at the deposition. A report shall be signed by the expert and shall contain a
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complete statement of all opinions the expert will offer at trial and the basis and reasons
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for them. Such an expert may not testify in a party’s case-in-chief concerning any matter
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not fairly disclosed in the report. The party offering the expert shall pay the costs for the
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report.
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(a)(4)(C) Timing for expert discovery.
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Effective Date: November 1, 2011
(a)(4)(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 made4)(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)(4)(B) and Rule 30,
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or a written report pursuant to paragraph (a)(4)(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 by another party ,
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within 28 days after the election is made. If no election is made, then no further
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discovery of the expert shall be permitted.
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(a)(4)(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 paragraph (a)(4)(A)
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within seven days after the later of (i) the date on which the election under paragraph
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(3)(B), within 60 days after the disclosure made by the other party.a)(4)(C)(i) is due, or
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(ii) receipt of the written report or the taking of the expert’s deposition pursuant to
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paragraph (a)(4)(C)(i). Within seven days thereafter, the party opposing the expert may
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serve notice electing either a deposition of the expert pursuant to paragraph (a)(4)(B)
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and Rule 30, or a written report pursuant to paragraph (a)(4)(B). The deposition shall
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occur, or the report shall be provided, within 28 days after the election is made. If no
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election is made, then no further discovery of the expert shall be permitted.
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(a)(4) (a)(4)(D) Multiparty actions. In multiparty actions, all parties opposing the
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expert must agree on either a report or a deposition. If all parties opposing the expert do
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not agree, then further discovery of the expert may be obtained only by deposition
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pursuant to paragraph (a)(4)(B) and Rule 30.
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(a)(4)(E) Summary of non-retained expert testimony. If a party intends to present
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evidence at trial under Rules 702, 703, or of the Utah Rules of Evidence from any
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person other than an expert witness who is retained or specially employed to provide
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testimony in the case or a person whose duties as an employee of the party regularly
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involve giving expert testimony, that party must provide a written summary of the facts
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and opinions to which the witness is expected to testify in accordance with the
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deadlines set forth in paragraph (a)(4)(C). A deposition of such a witness may not
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exceed four hours.
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(a)(5) Pretrial disclosures.
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(a)(5)(A) A party shall, without waiting for a discovery request, provide to other
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parties the following information regarding the evidence that it may present at trial other
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than solely for impeachment::
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(a)(45)(A)(i) the name and, if not previously provided, the address and telephone
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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)(B5)(A)(ii) the designationname of witnesses whose testimony is expected to
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be presented by means of a deposition and, if not taken stenographically, a transcript of
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the pertinent portions of the a deposition and a copy of the transcript with the proposed
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testimony designated; and
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(a)(4)(C) an appropriate identification(a)(5)(A)(iii) a copy of each document or other
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exhibit, including charts, summaries of other evidenceand demonstrative exhibits,
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unless solely for impeachment, separately identifying those which the party expects
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towill offer and those which the party may offer if the need arises..
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Unless otherwise stipulated(a)(5)(B) Disclosure required by the parties or ordered by
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the court, the disclosures required by subdivision (a)(4paragraph (a)(5) shall be made at
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least 3028 days before trial. WithinAt least 14 days thereafter, unless a different time is
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specified by the courtbefore trial, a party mayshall serve and file a list disclosing (i) any
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counter-104 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 to of a deposition and to the admissibility of materials identified under
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subparagraph (C). Objections not so disclosed, otherexhibits. Other than objections
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under Rules 402 and 403 of the Utah Rules of Evidence, shall be deemedobjections not
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listed are waived unless excused by the court for good cause shown..
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Effective Date: November 1, 2011
(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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(b) Discovery scope.
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(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 any party if the discovery satisfies the
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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 outweigh the burden or
expense;
(b)(2)(C) the discovery is consistent with the overall case management and will
further the just, speedy and inexpensive determination of the case;
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(b)(2)(D) the discovery is not unreasonably cumulative or duplicative;
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(b)(2)(E) the information cannot be obtained from another source that is more
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convenient, less burdensome or less expensive; and
(b)(2)(F) the party seeking discovery or to the claim or defense of any other party,
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including the existence, description, nature, custody, condition, and location of any
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books, documents, or other tangible things and the identity and location of persons
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having knowledge of any discoverable matter. It is not ground for objectionhas not had
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sufficient opportunity to obtain the information by discovery or otherwise, taking into
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account the parties’ relative access to 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 the information
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sought will be inadmissible at the trial if the information sought appears reasonably
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calculated to lead to the discovery of admissible evidence.
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(b)(2) A party need not provide discovery of electronically stored information from
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sources that the party identifies asis not reasonably accessible because of undue
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burden or cost. The party shall expressly make any claim that the source is not
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reasonably accessible, describing shall describe the source of the electronically stored
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information, the nature and extent of the burden, the nature of the information not
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provided, and any other information that will enable other parties to assess the claim.
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On motion to compel discovery or for a protective order, the party from whom discovery
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is sought must show that the information is not reasonably accessible because of undue
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burden or cost. If that showing is made, the court may order discovery from such
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sources if the requesting party shows good cause, considering the limitations of
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subsection (b)(3). The court may specify conditions for the discovery.evaluate the claim.
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(b)(3) Limitations. The frequency or extent of use of the discovery methods set forth
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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
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the showing required showingin paragraph (b)(5) a statement concerning the action or
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its subject matter previously made by that party. Upon request, a person not a party
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may 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 subdivision (a)(3)(B),paragraph (a)(4), 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
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attorney and expert witnesses. Paragraph (b)(5) protects communications between
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the party’s attorney and any deposition shall be conducted within 60 days after the
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report iswitness required to provide disclosures under paragraph (a)(4), regardless of
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the form of the communications, except to the extent that the communications:
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(b)(7)(B)(i) relate to compensation for the expert’s study or testimony;
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(b)(7)(B)(ii) identify facts or data that the party’s attorney provided. and that the
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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,
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by 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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Effective Date: November 1, 2011
(b)(8) Claims of Privilegeprivilege or Protectionprotection of Trial Preparation
Materials.trial 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 protection.claim.
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(b)(68)(B) Information produced. If a party produces information that the party
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claims is producedprivileged or prepared in discovery that is subject to a
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claimanticipation of privilegelitigation or of protection asfor trial-preparation material, the
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party making, the claimproducing party may notify any receiving party that received the
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information of the claim and the basis for it. After being notified, a receiving party must
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promptly return, sequester, or destroy the specified information and any copies it has
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and may not use or disclose the information until the claim is resolved. A receiving party
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may promptly present the information to the court under seal for a determination of the
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claim. If the receiving party disclosed the information before being notified, it must take
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reasonable steps to retrieve it. The producing party must preserve the information until
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the claim is 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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300
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Effective Date: November 1, 2011
(c)(2) that the discovery may be had only on specified terms and conditions,
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) (c) Methods, sequence and timing of discovery; tiers; limits on standard
discovery; extraordinary discovery.
(c)(1) Methods of discovery. Parties may obtain discovery by one or more of the
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following methods: depositions upon oral examination or written questions; written
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interrogatories; production of documents or things or permission to enter upon land or
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other property, for inspection and other purposes; physical and mental examinations;
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requests for admission; and subpoenas other than for a court hearing or trial.
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(c)(2) Sequence and timing of discovery. Except for cases exempt under
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subdivision (a)(2), except as authorized under these rules, or unless otherwise
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stipulated by the parties or ordered by the court, a party may not seek discovery from
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any source before the parties have met and conferred as required by subdivision (f).
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Unless otherwise stipulated by the parties or ordered by the court, fact discovery shall
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be completed within 240 days after the first answer is filed. Unless the court upon
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motion, for the convenience of parties and witnesses and in the interests of justice,
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orders otherwise, methodsMethods of discovery may be used in any sequence, and the
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fact that a party is conducting discovery, whether by deposition or otherwise, shall not
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operate to delay any other party's discovery.
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(e) Supplementation of responses. A party who has made a Except for cases exempt
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under paragraph (a)(3), a party may not seek discovery from any source before that
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party’s initial disclosure under subdivision (a) or responded to a request for discovery
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with a response is under a duty to supplement the disclosure or response to include
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information thereafter acquired if ordered by the court or in the following
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circumstances:obligations are satisfied.
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(e)((c)(3) Definition of tiers for standard discovery. Actions claiming $50,000 or
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less in damages are permitted standard discovery as described for Tier 1) A . Actions
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claiming more than $50,000 and less than $300,000 in damages are permitted standard
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discovery as described for Tier 2. Actions claiming $300,000 or more in damages are
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permitted standard discovery as described for Tier 3. Absent an accompanying damage
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claim for more than $300,000, actions claiming non-monetary relief are permitted
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standard discovery as described for Tier 2.
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(c)(4) Definition of damages. For purposes of determining standard discovery, the
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amount of damages includes the total of all monetary damages sought (without
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duplication for alternative theories) by all parties in all claims for relief in the original
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pleadings.
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(c)(5) Limits on standard fact discovery. Standard fact discovery per side
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(plaintiffs collectively, defendants collectively, and third-party defendants collectively) in
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each tier is as follows. The days to complete standard fact discovery are calculated from
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the date the first defendant’s first disclosure is due and do not include expert discovery
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under paragraphs(a duty )(4)(C) and (D).
Tier
1
Amount of
Damages
$50,000 or
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
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3
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Effective Date: November 1, 2011
less
More than
$50,000
and less
than
$300,000
or nonmonetary
relief
$300,000
or more
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10
10
10
180
30
20
20
20
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(c)(6) Extraordinary discovery. To obtain discovery beyond the limits established in
paragraph (c)(5), a party shall file:
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(c)(6)(A) before the close of standard discovery and after reaching the limits of
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standard discovery imposed by these rules, a stipulated statement that extraordinary
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discovery is necessary and proportional under paragraph (b)(2) and that each party has
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reviewed and approved a discovery budget; or
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(c)(6)(B) before the close of standard discovery and after reaching the limits of
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standard discovery imposed by these rules, a motion for extraordinary discovery setting
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forth the reasons why the extraordinary discovery is necessary and proportional under
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paragraph (b)(2) and certifying that the party has reviewed and approved a discovery
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budget and certifying that the party has in good faith conferred or attempted to confer
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with the other party in an effort to achieve a stipulation.
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(d) Requirements for disclosure or response; disclosure or response by an
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organization; failure to disclose; initial and supplemental disclosures and
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responses.
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(d)(1) A party shall make disclosures and responses to discovery based on the
information then known or reasonably available to the party.
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(d)(2) If the party providing disclosure or responding to discovery is a corporation,
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partnership, association, or governmental agency, the party shall act through one or
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more officers, directors, managing agents, or other persons, who shall make disclosures
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and responses to discovery based on the information then known or reasonably
375
available to the party.
Rule 26.
Effective Date: November 1, 2011
376
(d)(3) A party is not excused from making disclosures or responses because the
377
party has not completed investigating the case or because the party challenges the
378
sufficiency of another party's disclosures or responses or because another party has not
379
made disclosures or responses.
380
(d)(4) If a party fails to disclose or to supplement timely a disclosure or response to
381
discovery, that party may not use the undisclosed witness, document or material at
382
appropriate intervals disclosures under subdivision (a) if the any hearing or trial unless
383
the failure is harmless or the party shows good cause for the failure.
384
(d)(5) If a party learns that in some material respect the information discloseda
385
disclosure or response is incomplete or incorrect and ifin some important way, the party
386
must timely provide the additional or corrective information has not otherwise been
387
made known to the other parties during the discovery process or in writing. With respect
388
to testimony of an expert from whom a report is required under subdivision (a)(3)(B) the
389
duty extends both to correct information contained in the report and to information
390
provided through a deposition of the expert.if it has not been made known to the other
391
parties. The supplemental disclosure or response must state why the additional or
392
correct information was not previously provided.
393
(e)(2) A party is under a duty seasonably to amend a prior response to an
394
interrogatory, request for production, or request for admission if the party learns that the
395
response is in some material respect incomplete or incorrect and if the additional or
396
corrective information has not otherwise been made known to the other parties during
397
the discovery process or in writing.
398
(f) Discovery and scheduling conference.
399
The following applies to all cases not exempt under subdivision (a)(2), except as
400
401
otherwise stipulated or directed by order.
(f)(1) The parties shall, as soon as practicable after commencement of the action,
402
meet in person or by telephone to discuss the nature and basis of their claims and
403
defenses, to discuss the possibilities for settlement of the action, to make or arrange for
404
the disclosures required by subdivision (a)(1), to discuss any issues relating to
405
preserving discoverable information and to develop a stipulated discovery plan.
Rule 26.
Effective Date: November 1, 2011
406
Plaintiff’s counsel shall schedule the meeting. The attorneys of record shall be present
407
at the meeting and shall attempt in good faith to agree upon the discovery plan.
408
(f)(2) The plan shall include:
409
(f)(2)(A) what changes should be made in the timing, form, or requirement for
410
disclosures under subdivision (a), including a statement as to when disclosures under
411
subdivision (a)(1) were made or will be made;
412
(f)(2)(B) the subjects on which discovery may be needed, when discovery should be
413
completed, whether discovery should be conducted in phases and whether discovery
414
should be limited to particular issues;
415
416
417
(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
418
material, including - if the parties agree on a procedure to assert such claims after
419
production - whether to ask the court to include their agreement in an order;
420
421
422
(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
423
allocating fault to a non-party and the identity of the non-party; and
424
(f)(2)(G) any other orders that should be entered by the court.
425
(f)(3) Plaintiff’s counsel shall submit to the court within 14 days after the meeting and
426
in any event no more than 60 days after the first answer is filed a proposed form of
427
order in conformity with the parties’ stipulated discovery plan. The proposed form of
428
order shall also include each of the subjects listed in Rule 16(b)(1)-(8), except that the
429
date or dates for pretrial conferences, final pretrial conference and trial shall be
430
scheduled with the court or may be deferred until the close of discovery. If the parties
431
are unable to agree to the terms of a discovery plan or any part thereof, the plaintiff
432
shall and any party may move the court for entry of a discovery order on any topic on
433
which the parties are unable to agree. Unless otherwise ordered by the court, the
434
presumptions established by these rules shall govern any subject not included within
435
the parties’ stipulated discovery plan.
Rule 26.
436
437
Effective Date: November 1, 2011
(f)(4) Any party may request a scheduling and management conference or order
under Rule 16(b).
438
(f)(5) A party joined after the meeting of the parties is bound by the stipulated
439
discovery plan and discovery order, unless the court orders on stipulation or motion a
440
modification of the discovery plan and order. The stipulation or motion shall be filed
441
within a reasonable time after joinder.
442
(g(e) Signing of discovery requests, responses, and objections. Every
443
disclosure, request for discovery or, response orto a request for discovery and objection
444
thereto made byto a partyrequest for discovery shall be in writing and signed by at least
445
one attorney of record or by the party if the party is not represented, whose address
446
shall be stated. The signature of the attorney or party constitutes a certification that the
447
person has read the request, response, or objection and that to the best of the person’s
448
knowledge, information, and belief formed after reasonable inquiry it is: (1) consistent
449
with these rules and warranted by existing law or a good faith argument for the
450
extension, modification, or reversal of existing law; (2) not interposed for any improper
451
purpose, such as to harass or to cause unnecessary delay or needless increase in the
452
cost of litigation; and (3) not unreasonable or unduly burdensome or expensive, given
453
the needs of the case, the discovery already had in the case, the amount in controversy,
454
and the importance of the issues at stake in the litigation. If a request, response, or
455
objection is is a certification under Rule 11. If a request or response is not signed, it
456
shall be stricken unless it is signed promptly after the omission is called to the attention
457
of the party making the request, response, or objection, and a party shall not be
458
obligatedthe receiving party does not need to take any action with respect to it until it is
459
signed.
460
. If a certification is made in violation of the rule, the court, upon motion or upon its
461
own initiative, shall impose upon the person who made the certification, the party on
462
whose behalf the request, response, or objection is made, or both, an appropriate
463
sanction, which may include an order to pay the amount of the reasonable expenses
464
incurred because of the violation, including a reasonable attorney fee.may take any
465
action authorized by Rule 11 or Rule 37(e).
Rule 26.
Effective Date: November 1, 2011
466
(h) Deposition where action pending in another state. Any party to an action or
467
proceeding in another state may take the deposition of any person within this state, in
468
the same manner and subject to the same conditions and limitations as if such action or
469
proceeding were pending in this state, provided that in order to obtain a subpoena the
470
notice of the taking of such deposition shall be filed with the clerk of the court of the
471
county in which the person whose deposition is to be taken resides or is to be served,
472
and provided further that all matters arising during the taking of such deposition which
473
(f) Filing. Except as required by thethese rules are required to be submitted to the court
474
shall be submitted to the court in the county where the deposition is being taken.
475
(i) Filing.
476
(i)(1) Unless otherwise or ordered by the court, a party shall not file disclosures or
477
requestswith the court a disclosure, a request for discovery with the courtor a response
478
to a request for discovery, but shall file only the original certificate of service stating that
479
the disclosures or requests for discovery have been served on the other parties and the
480
date of service. Unless otherwise ordered by the court, a party shall not file a response
481
to a request for discovery with the court, but shall file only the original certificate of
482
service stating that thedisclosure, request for discovery or response has been served on
483
the other parties and the date of service. Except as provided in Rule 30(f)(1), Rule 32 or
484
unless otherwise ordered by the court, depositions shall not be filed with the court.
485
(i)(2) A party filing a motion under subdivision (c) or a motion under Rule 37(a) shall
486
attach to the motion a copy of the request for discovery or the response which is at
487
issue.
488
Advisory Committee Notes
489
Advisory Committee Notes
490
Disclosure requirements and timing. Rule 26(a)(1). The 2011 amendments seek
491
to reduce discovery costs by requiring each party to produce, at an early stage in the
492
case, and without a discovery request, all of the documents and physical evidence the
493
party may offer in its case-in-chief and the names of witnesses the party may call in its
494
case-in-chief, with a description of their expected testimony. In this respect, the
495
amendments build on the initial disclosure requirements of the prior rules. In addition to
Rule 26.
Effective Date: November 1, 2011
496
the disclosures required by the prior version of Rule 26(a)(1), a party must disclose
497
each fact witness the party may call in its case-in-chief and a summary of the witness’s
498
expected testimony, a copy of all documents the party may offer in its case-in-chief, and
499
all documents to which a party refers in its pleadings.
500
Not all information will be known at the outset of a case. If discovery is serving its
501
proper purpose, additional witnesses, documents, and other information will be
502
identified. The scope and the level of detail required in the initial Rule 26(a)(1)
503
disclosures should be viewed in light of this reality. A party is not required to interview
504
every witness it ultimately may call at trial in order to provide a summary of the witness’s
505
expected testimony. As the information becomes known, it should be disclosed. No
506
summaries are required for adverse parties, including management level employees of
507
business entities, because opposing lawyers are unable to interview them and their
508
testimony is available to their own counsel. For uncooperative or hostile witnesses any
509
summary of expected testimony would necessarily be limited to the subject areas the
510
witness is reasonably expected to testify about. For example, defense counsel may be
511
unable to interview a treating physician, so the initial summary may only disclose that
512
the witness will be questioned concerning the plaintiff’s diagnosis, treatment and
513
prognosis. After medical records have been obtained, the summary may be expanded
514
or refined.
515
Subject to the foregoing qualifications, the summary of the witness’s expected
516
testimony should be just that – a summary. The rule does not require prefiled testimony
517
or detailed descriptions of everything a witness might say at trial. On the other hand, it
518
requires more than the broad, conclusory statements that often were made under the
519
prior version of Rule 26(a)(1)(e.g., “The witness will testify about the events in question”
520
or “The witness will testify on causation.”). The intent of this requirement is to give the
521
other side basic information concerning the subjects about which the witness is
522
expected to testify at trial, so that the other side may determine the witness’s relative
523
importance in the case, whether the witness should be interviewed or deposed, and
524
whether additional documents or information concerning the witness should be sought.
Rule 26.
Effective Date: November 1, 2011
525
This information is important because of the other discovery limits contained in the 2011
526
amendments, particularly the limits on depositions.
527
Likewise, the documents that should be provided as part of the Rule 26(a)(1)
528
disclosures are those that a party reasonably believes it may use at trial, understanding
529
that not all documents will be available at the outset of a case. In this regard, it is
530
important to remember that the duty to provide documents and witness information is a
531
continuing one, and disclosures must be promptly supplemented as new evidence and
532
witnesses become known as the case progresses.
533
The amendments also require parties to provide more information about damages
534
early in the case. Too often, the subject of damages is deferred until late in the case.
535
Early disclosure of damages information is important. Among other things, it is a critical
536
factor in determining proportionality. The committee recognizes that damages often
537
require additional discovery, and typically are the subject of expert testimony. The Rule
538
is not intended to require expert disclosures at the outset of a case. At the same time,
539
the subject of damages should not simply be deferred until expert discovery. Parties
540
should make a good faith attempt to compute damages to the extent it is possible to do
541
so and must in any event provide all discoverable information on the subject, including
542
materials related to the nature and extent of the damages.
543
The penalty for failing to make timely disclosures is that the evidence may not be
544
used in the party’s case-in-chief. To make the disclosure requirement meaningful, and to
545
discourage sandbagging, parties must know that if they fail to disclose important
546
information that is helpful to their case, they will not be able to use that information at
547
trial. The courts will be expected to enforce them unless the failure is harmless or the
548
party shows good cause for the failure.
549
The 2011 amendments also change the time for making these required disclosures.
550
Because the plaintiff controls when it brings the action, plaintiffs must make their
551
disclosures within 14 days after service of the first answer. A defendant is required to
552
make its disclosures within 28 days after the plaintiff’s first disclosure or after that
553
defendant’s appearance, whichever is later. The purpose of early disclosure is to have
554
all parties present the evidence they expect to use to prove their claims or defenses,
Rule 26.
Effective Date: November 1, 2011
555
thereby giving the opposing party the ability to better evaluate the case and determine
556
what additional discovery is necessary and proportional.
557
The time periods for making Rule 26(a)(1) disclosures, and the presumptive
558
deadlines for completing fact discovery, are keyed to the filing of an answer. If a
559
defendant files a motion to dismiss or other Rule 12(b) motion in lieu of an answer,
560
these time periods normally would be not begin to run until that motion is resolved.
561
Finally, the 2011 amendments eliminate two categories of actions that previously
562
were exempt from the mandatory disclosure requirements. Specifically, the
563
amendments eliminate the prior exemption for contract actions in which the amount
564
claimed is $20,000 or less, and actions in which any party is proceeding pro se. In the
565
committee’s view, these types of actions will benefit from the early disclosure
566
requirements and the overall reduced cost of discovery.
567
Expert disclosures and timing. Rule 26(a)(3). Expert discovery has become an
568
ever-increasing component of discovery cost. The prior rules sought to eliminate some
569
of these costs by requiring the written disclosure of the expert’s opinions and other
570
background information. However, because the expert was not required to sign these
571
disclosures, and because experts often were allowed to deviate from the opinions
572
disclosed, attorneys typically would take the expert’s deposition to ensure the expert
573
would not offer “surprise” testimony at trial, thereby increasing rather than decreasing
574
the overall cost. The amendments seek to remedy this and other costs associated with
575
expert discovery by, among other things, allowing the opponent to choose either a
576
deposition of the expert or a written report, but not both; in the case of written reports,
577
requiring more comprehensive disclosures, signed by the expert, and making clear that
578
experts will not be allowed to testify beyond what is fairly disclosed in a report, all with
579
the goal of making reports a reliable substitute for depositions; and incorporating a rule
580
that protects from discovery most communications between an attorney and retained
581
expert. Discovery of expert opinions and testimony is automatic under Rule 26(a)(3) and
582
parties are not required to serve interrogatories or use other discovery devices to obtain
583
this information.
Rule 26.
Effective Date: November 1, 2011
584
Disclosures of expert testimony are made in sequence, with the party who bears the
585
burden of proof on the issue for which expert testimony will be offered going first. Within
586
seven days after the close of fact discovery, that party must disclose: (i) the expert’s
587
curriculum vitae identifying the expert’s qualifications, publications, and prior testimony;
588
(ii) compensation information; (iii) a brief summary of the opinions the expert will offer;
589
and (iv) a complete copy of the expert’s file for the case. The file should include all of
590
the facts and data that the expert has relied upon in forming the expert’s opinions. If the
591
expert has prepared summaries of data, spreadsheets, charts, tables, or similar
592
materials, they should be included. If the expert has used software programs to make
593
calculations or otherwise summarize or organize data, that information and underlying
594
formulas should be provided in native form so it can be analyzed and understood. To
595
the extent the expert is relying on depositions or materials produced in discovery, then a
596
list of the specific materials relied upon is sufficient. The committee recognizes that
597
experts frequently will prepare demonstrative exhibits or other aids to illustrate the
598
expert’s testimony at trial, and the costs for preparing these materials can be
599
substantial. For that reason, these types of demonstrative aids may be prepared and
600
disclosed later, as part of the Rule 26(a)(4) pretrial disclosures when trial is imminent.
601
Within seven days after this disclosure, the party opposing the retained expert may
602
elect either a deposition or a written report from the expert. A deposition is limited to four
603
hours, which is not included in the deposition hours under Rule 26(c)(5), and the party
604
taking it must pay the expert’s hourly fee for attending the deposition. If a party elects a
605
written report, the expert must provide a signed report containing a complete statement
606
of all opinions the expert will express and the basis and reasons for them. The intent is
607
not to require a verbatim transcript of exactly what the expert will say at trial; instead the
608
expert must fairly disclose the substance of and basis for each opinion the expert will
609
offer. The expert may not testify in a party’s case in chief concerning any matter that is
610
not fairly disclosed in the report. To achieve the goal of making reports a reliable
611
substitute for depositions, courts are expected to enforce this requirement. If a party
612
elects a deposition, rather than a report, it is up to the party to ask the necessary
613
questions to “lock in” the expert’s testimony. But the expert is expected to be fully
Rule 26.
Effective Date: November 1, 2011
614
prepared on all aspects of his/her trial testimony at the time of the deposition and may
615
not leave the door open for additional testimony by qualifying answers to deposition
616
questions.
617
The report or deposition must be completed within 28 days after the election is
618
made. After this, the party who does not bear the burden of proof on the issue for which
619
expert testimony is offered must make its corresponding disclosures and the opposing
620
party may then elect either a deposition or a written report. Under the deadlines
621
contained in the rules, expert discovery should take less than three months to complete.
622
However, as with the other discovery rules, these deadlines can be altered by
623
stipulation of the parties or order of the court.
624
The amendments also address the issue of testimony from non-retained experts,
625
such as treating physicians, police officers, or employees with special expertise, who
626
are not retained or specially employed to provide expert testimony, or whose duties as
627
an employee do not regularly involve giving expert testimony. This issue was addressed
628
by the Supreme Court in Drew v. Lee, 2011 UT 15, wherein the court held that reports
629
under the prior version of Rule 26(a)(3) are not required for treating physicians.
630
There are a number of difficulties inherent in disclosing expert testimony that may be
631
offered from fact witnesses. First, there is often not a clear line between fact and expert
632
testimony. Many fact witnesses have scientific, technical or other specialized
633
knowledge, and their testimony about the events in question often will cross into the
634
area of expert testimony. The rules are not intended to erect artificial barriers to the
635
admissibility of such testimony. Second, many of these fact witnesses will not be within
636
the control of the party who plans to call them at trial. These witnesses may not be
637
cooperative, and may not be willing to discuss opinions they have with counsel. Where
638
this is the case, disclosures will necessarily be more limited. On the other hand,
639
consistent with the overall purpose of the 2011 amendments, a party should receive
640
advance notice if their opponent will solicit expert opinions from a particular witness so
641
they can plan their case accordingly. In an effort to strike an appropriate balance, the
642
rules require that such witnesses be identified and the information about their
643
anticipated testimony should include that which is required under Rule 26(a)(1)(A)(ii),
Rule 26.
Effective Date: November 1, 2011
644
which should include any opinion testimony that a party expects to elicit from them at
645
trial. If a party has disclosed possible opinion testimony in its Rule 26(a)(1)(A)(ii)
646
disclosures, that party is not required to prepare a separate Rule 26(a)(3)(D) disclosure
647
for the witness. And if that disclosure is made in advance of the witness’s deposition,
648
those opinions should be explored in the deposition and not in a separate expert
649
deposition. Otherwise, the timing for disclosure of non-retained expert opinions is the
650
same as that for retained experts under Rule 26(a)(4)(C) and depends on whether the
651
party has the burden of proof or is responding to another expert. Rule 26(a)(3)(D) and
652
26(a)(1)(A)(ii) are not intended to elevate form over substance – all they require is that a
653
party fairly inform its opponent that opinion testimony may be offered from a particular
654
witness. And because a party who expects to offer this testimony normally cannot
655
compel such a witness to prepare a written report, further discovery must be done by
656
interview or by deposition.
657
Finally, the amendments include a new Rule 26(b)(7) that protects from discovery
658
draft expert reports and, with limited exception, communications between an attorney
659
and an expert. These changes are modeled after the recent changes to the Federal
660
Rules of Civil Procedure and are intended to address the unnecessary and costly
661
procedures that often were employed in order to protect such information from
662
discovery, and to reduce “satellite litigation” over such issues.
663
Scope of discovery—Proportionality. Rule 26(b). Proportionality is the principle
664
governing the scope of discovery. Simply stated, it means that the cost of discovery
665
should be proportional to what is at stake in the litigation.
666
In the past, the scope of discovery was governed by “relevance” or the “likelihood to
667
lead to discovery of admissible evidence.” These broad standards may have secured
668
just results by allowing a party to discover all facts relevant to the litigation. However,
669
they did little to advance two equally important objectives of the rules of civil
670
procedure—the speedy and inexpensive resolution of every action. Accordingly, the
671
former standards governing the scope of discovery have been replaced with the
672
proportionality standards in subpart (b)(1).
Rule 26.
673
Effective Date: November 1, 2011
The concept of proportionality is not new. The prior rule permitted the Court to limit
674
discovery methods if it determined that “the discovery was unduly burdensome or
675
expensive, taking into account the needs of the case, the amount in controversy,
676
limitations on the parties’ resources, and the importance of the issues at stake in the
677
litigation.” The Federal Rules of Civil Procedure contains a similar provision. See Fed.
678
R. Civ. P. 26(b)(2)(C). This method of limiting discovery, however, was rarely invoked
679
either under the Utah rules or federal rules.
680
Under the prior rule, the party objecting to the discovery request had the burden of
681
proving that a discovery request was not proportional. The new rule changes the burden
682
of proof. Today, the party seeking discovery beyond the scope of “standard” discovery
683
has the burden of showing that the request is “relevant to the claim or defense of any
684
party” and that the request satisfies the standards of proportionality. As before, ultimate
685
admissibility is not an appropriate objection to a discovery request so long as the
686
proportionality standard and other requirements are met.
687
The 2011 amendments establish three tiers of standard discovery in Rule 26(c).
688
Ideally, rules of procedure should be crafted to promote predictability for litigants. Rules
689
should limit the need to resort to judicial oversight. Tiered standard discovery seeks to
690
achieve these ends. The “one-size-fits-all” system is rejected. Tiered discovery signals
691
to judges, attorneys, and parties the amount of discovery which by rule is deemed
692
proportional for cases with different amounts in controversy.
693
Any system of rules which permits the facts and circumstances of each case to
694
inform procedure cannot eliminate uncertainty. Ultimately, the trial court has broad
695
discretion in deciding whether a discovery request is proportional. The proportionality
696
standards in subpart (b)(2) and the discovery tiers in subpart (c) mitigate uncertainty by
697
guiding that discretion. The proper application of the proportionality standards will be
698
defined over time by trial and appellate courts.
699
Standard and extraordinary discovery. Rule 26(c). As a counterpart to requiring
700
more detailed disclosures under Rule 26(a), the 2011 amendments place new
701
limitations on additional discovery the parties may conduct. Because the committee
702
expects the enhanced disclosure requirements will automatically permit each party to
Rule 26.
Effective Date: November 1, 2011
703
learn the witnesses and evidence the opposing side will offer in its case-in-chief,
704
additional discovery should serve the more limited function of permitting parties to find
705
witnesses, documents, and other evidentiary materials that are harmful, rather than
706
helpful, to the opponent’s case.
707
Rule 26(c) provides for three separate “tiers” of limited, “standard” discovery that are
708
presumed to be proportional to the amount and issues in controversy in the action, and
709
that the parties may conduct as a matter of right. An aggregation of all damages sought
710
by all parties in an action dictates the applicable tier of standard discovery, whether
711
such damages are sought by way of a complaint, counterclaim, or otherwise. The tiers
712
of standard discovery are set forth in a chart that is embedded in the body of the rule
713
itself. “Tier 1” describes a minimal amount of standard discovery that is presumed
714
proportional for cases involving damages of $50,000 or less. “Tier 2” sets forth larger
715
limits on standard discovery that are applicable in cases involving damages above
716
$50,000 but less than $300,000. Finally, “Tier 3” prescribes still greater standard
717
discovery for actions involving damages in excess of $300,000. Deposition hours are
718
charged to a side for the time spent asking questions of the witness. In a particular
719
deposition, one side may use two hours while the other side uses only 30 minutes. The
720
tiers also provide presumptive limitations on the time within which standard discovery
721
should be completed, which limitations similarly increase with the amount of damages at
722
issue. Discovery motions will not toll the period. Parties are expected to be reasonable
723
and accomplish as much as they can during standard discovery. The motions may result
724
in additional discovery and sanctions at the expense of a party who unreasonably fails
725
to respond or otherwise frustrates discovery. After the expiration of the applicable time
726
limitation, a case is presumed to be ready for trial. Actions for non-monetary relief, such
727
as injunctive relief, are subject to the standard discovery limitations of Tier 2, absent an
728
accompanying monetary claim of $300,000 or more, in which case Tier 3 applies. The
729
committee determined these standard discovery limitations based on the expectation
730
that for the majority of cases filed in the Utah State Courts, the magnitude of available
731
discovery and applicable time parameters available under the three-tiered system
732
should be sufficient for cases involving the respective amounts of damages.
Rule 26.
Effective Date: November 1, 2011
733
Despite the expectation that standard discovery according to the applicable tier
734
should be adequate in the typical case, the 2011 amendments contemplate there will be
735
some cases for which standard discovery is not sufficient or appropriate. In such cases,
736
parties may conduct additional discovery that is shown to be consistent with the
737
principle of proportionality. There are two ways to obtain such additional discovery. The
738
first is by stipulation. If the parties can agree additional discovery is necessary, they may
739
stipulate to as much additional discovery as they desire, provided they stipulate the
740
additional discovery is proportional to what is at stake in the litigation and counsel for
741
each party certifies that the party has reviewed and approved a budget for additional
742
discovery. Such a stipulation should be filed before the close of the standard discovery
743
time limit, but only after reaching the limits for that type of standard discovery available
744
under the rule. If these conditions are met, the Court will not second-guess the parties
745
and their counsel and must approve the stipulation.
746
The second method to obtain additional discovery is by motion. The committee
747
recognizes there will be some cases in which additional discovery is appropriate, but the
748
parties cannot agree to the scope of such additional discovery. These may include,
749
among other categories, large and factually complex cases and cases in which there is
750
a significant disparity in the parties’ access to information, such that one party
751
legitimately has a greater need than the other party for additional discovery in order to
752
prepare properly for trial. To prevent a party from taking advantage of this situation, the
753
2011 amendments allow any party to move the Court for additional discovery. As with
754
stipulations for extraordinary discovery, a party filing a motion for extraordinary
755
discovery should do so before the close of the standard discovery time limit, but only
756
after the moving party has reached the limits for that type of standard discovery
757
available to it under the rule. By taking advantage of this discovery, counsel should be
758
better equipped to articulate for the court what additional discovery is needed and why.
759
The party making such a motion must demonstrate that the additional discovery is
760
proportional and certify that the party has reviewed and approved a discovery budget.
761
The burden to show the need for additional discovery, and to demonstrate relevance
762
and proportionality, always falls on the party seeking additional discovery. However,
Rule 26.
Effective Date: November 1, 2011
763
cases in which such additional discovery is appropriate do exist, and it is important for
764
courts to recognize they can and should permit additional discovery in appropriate
765
cases, commensurate with the complexity and magnitude of the dispute.
766
Protective order language moved to Rule 37. The 2011 amendments delete in its
767
entirety the prior language of Rule 26(c) governing motions for protective orders. The
768
substance of that language is now found in Rule 37. The committee determined it was
769
preferable to cover motions to compel, motions for protective orders, and motions for
770
discovery sanctions in a single rule, rather than two separate rules. Accordingly, Rule 37
771
now governs these motions and orders.
772
Consequences of failure to disclose. Rule 26(d). If a party fails to disclose or to
773
supplement timely its discovery responses, that party cannot use the undisclosed
774
witness, document, or material at any hearing or trial, absent proof that non-disclosure
775
was harmless or justified by good cause. More complete disclosures increase the
776
likelihood that the case will be resolved justly, speedily, and inexpensively. Not being
777
able to use evidence that a party fails properly to disclose provides a powerful incentive
778
to make complete disclosures. This is true only if trial courts hold parties to this
779
standard. Accordingly, although a trial court retains discretion to determine how properly
780
to address this issue in a given case, the usual and expected result should be exclusion
781
of the evidence.
782
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.