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