Draft: April 28, 2011
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Rule 26
Draft: April 28, 2011
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Rule 26. General provisions governing disclosure and discovery.
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(a) Disclosure. This rule applies unless changed or supplemented by a rule
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governing disclosure and discovery in a practice area.
(a)(1) Initial disclosures. Except in cases exempt under paragraph (a)(2), a party
shall, without waiting for a discovery request, provide to other parties:
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(a)(1)(A) the name and, if known, the address and telephone number of:
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(a)(1)(A)(i) each individual likely to have discoverable information supporting its
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claims or defenses, unless solely for impeachment, identifying the subjects of the
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information; and
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(a)(1)(A)(ii) each fact witness the party may call in its case-in-chief and a summary
of the expected testimony;
(a)(1)(B) a copy of all documents, data compilations, electronically stored
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information, and tangible things in the possession or control of the party that the party
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may offer in its case-in-chief, except charts, summaries and demonstrative exhibits that
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have not yet been prepared and must be disclosed in accordance with paragraph
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(a)(4)(C);
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(a)(1)(C) a computation of any damages claimed and a copy of all discoverable
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documents or evidentiary material on which such computation is based, including
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materials about the nature and extent of injuries suffered;
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(a)(1)(D) a copy of any agreement under which any person may be liable to satisfy
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part or all of a judgment or to indemnify or reimburse for payments made to satisfy the
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judgment; and
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(a)(1)(E) a copy of all documents to which a party refers in its pleadings.
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(a)(1)(F) The disclosures required by paragraph (a)(1) shall be made:
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(a)(1)(F)(i) by the plaintiff within 14 days after service of the first answer to the
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complaint; and
(a)(1)(F)(ii) by the defendant within 28 days after the plaintiff’s first disclosure or after
that defendant’s appearance, whichever is later.
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(a)(2) Exemptions.
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(a)(2)(A) 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:
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(a)(2)(A)(i) for judicial review of adjudicative proceedings or rule making proceedings
of an administrative agency;
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(a)(2)(A)(ii) governed by Rule 65B or Rule 65C;
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(a)(2)(A)(iii) to enforce an arbitration award;
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(a)(2)(A)(iv) for water rights general adjudication under Title 73, Chapter 4.
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(a)(2)(B) In an exempt action, the matters subject to disclosure under paragraph
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(a)(1) are subject to discovery under paragraph (b).
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(a)(3) Disclosure of expert testimony.
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(a)(3)(A) Expert Testimony. A party shall, without waiting for a discovery request,
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provide to the other parties the following 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 and who is retained or specially employed to provide expert testimony in the
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case or whose duties as an employee of the party regularly involve giving expert
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testimony: (i) the expert’s name and qualifications, including a list of all publications
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authored within the preceding 10 years, and a list of any other cases in which the expert
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has testified as an expert at trial or by deposition within the preceding four years, (ii) a
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brief summary of the opinions to which the witness is expected to testify, (iii) all data
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and other information that will be relied upon by the witness in forming those opinions,
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and (iv) the compensation to be paid for the witness’s study and testimony.
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(a)(3)(B) Limits on Expert Discovery. Further discovery may be obtained from an
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expert witness either by deposition or by written report. A deposition shall not exceed
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four hours and the party taking the deposition shall pay the expert’s reasonable hourly
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fees for attendance at the deposition. A report shall be signed by the expert and shall
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contain a complete statement of all opinions the expert will offer at trial and the basis
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and reasons for them. Such an expert may not testify in a party’s case-in-chief
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concerning any matter not fairly disclosed in the report. The party offering the expert
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shall pay the costs for the report.
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(a)(3)(C) Timing for Expert Discovery.
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(a)(3)(C)(i) The party who bears the burden of proof on the issue for which expert
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testimony is offered shall provide the information required by paragraph (a)(3)(A) within
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seven days after the close of fact discovery. Within seven days thereafter, the party
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opposing the expert may serve notice electing either a deposition of the expert pursuant
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to paragraph (a)(3)(B) and Rule 30, or a written report pursuant to paragraph (a)(3)(B).
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The deposition shall occur, or the report shall be provided, within 28 days after the
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election is made. If no election is made, then no further discovery of the expert shall be
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permitted.
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(a)(3)(C)(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)(3)(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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(a)(3)(C)(i) is due, or (ii) receipt of the written report or the taking of the expert’s
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deposition pursuant to paragraph (a)(3)(C)(i). Within seven days thereafter, the party
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opposing the expert may serve notice electing either a deposition of the expert pursuant
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to paragraph (a)(3)(B) and Rule 30, or a written report pursuant to paragraph (a)(3)(B).
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The deposition shall occur, or the report shall be provided, within 28 days after the
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election is made. If no election is made, then no further discovery of the expert shall be
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permitted.
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(a)(3)(C)(iii) In multiparty actions, all parties opposing the expert must agree on
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either a report or a deposition. If all parties opposing the expert do not agree, then
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further discovery of the expert may be obtained only by deposition pursuant to
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paragraph (a)(3)(B) and Rule 30.
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(a)(3)(D) If a party intends to present evidence at trial under Rules 702, 703, or 705
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of the Utah Rules of Evidence from any person other than an expert witness who is
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retained or specially employed to provide testimony in the case or a person whose
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duties as an employee of the party regularly involve giving expert testimony, that party
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must provide a written summary of the facts and opinions to which the witness is
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expected to testify in accordance with the deadlines set forth in paragraph (a)(3)(C). A
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deposition of such a witness may not exceed four hours.
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(a)(4) Pretrial disclosures. A party shall, without waiting for a discovery request,
provide to other parties:
(a)(4)(A) 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 will call and witnesses the party may call;
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(a)(4)(B) the name of witnesses whose testimony is expected to be presented by
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transcript of a deposition and a copy of the transcript with the proposed testimony
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designated; and
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(a)(4)(C) a copy of each exhibit, including charts, summaries and demonstrative
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exhibits, unless solely for impeachment, separately identifying those which the party will
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offer and those which the party may offer.
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(a)(4)(D) Disclosure required by paragraph (a)(4) shall be made at least 28 days
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before trial. At least 14 days before trial, a party shall serve and file counter-
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designations of deposition testimony, objections and grounds for the objections to the
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use of a deposition and to the admissibility of exhibits. Other than objections under
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Rules 402 and 403 of the Utah Rules of Evidence, objections not listed are waived
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unless excused by the court for good cause.
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(b) Discovery scope.
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(b)(1) In general. Parties may discover any matter, not privileged, which is relevant
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to the claim or defense of any party if the discovery satisfies the standards of
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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
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(b)(2)(F) the party seeking discovery has not had sufficient opportunity to obtain the
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information by discovery or otherwise, taking into account the parties’ relative access to
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the information.
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(b)(3) Burden. The party seeking discovery always has the burden of showing
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proportionality and relevance. To ensure proportionality, the court may enter orders
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under Rule 37.
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(b)(4) Electronically stored information. A party claiming that electronically stored
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information is not reasonably accessible because of undue burden or cost shall
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describe the source of the electronically stored information, the nature and extent of the
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burden, the nature of the information not provided, and any other information that will
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enable other parties to evaluate the claim.
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(b)(5) Trial preparation materials. A party may obtain otherwise discoverable
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documents and tangible things prepared in anticipation of litigation or for trial by or for
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another party or by or for that other party's representative (including the party’s attorney,
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consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party
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seeking discovery has substantial need of the materials and that the party is unable
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without undue hardship to obtain substantially equivalent materials by other means. In
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ordering discovery of such materials, the court shall protect against disclosure of the
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mental impressions, conclusions, opinions, or legal theories of an attorney or other
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representative of a party.
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(b)(6) Statement previously made about the action. A party may obtain without the
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showing required in paragraph (b)(5) a statement concerning the action or its subject
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matter previously made by that party. Upon request, a person not a party may obtain
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without the required showing a statement about the action or its subject matter
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previously made by that person. If the request is refused, the person may move for a
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court order under Rule 37. A statement previously made is (A) a written statement
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signed or approved by the person making it, or (B) a stenographic, mechanical,
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electronic, or other recording, or a transcription thereof, which is a substantially verbatim
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recital of an oral statement by the person making it and contemporaneously recorded.
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(b)(7) Trial preparation; experts.
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(b)(7)(A) Trial-preparation protection for draft reports or disclosures. Paragraph
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(b)(5) protects drafts of any report or disclosure required under paragraph (a)(3),
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regardless of the form in which the draft is recorded.
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(b)(7)(B) Trial-preparation protection for communications between a party’s attorney
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and expert witnesses. Paragraph (b)(5) protects communications between the party’s
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attorney and any witness required to provide disclosures under paragraph (a)(3),
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regardless of the form of the communications, except to the extent that the
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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)(7)(B)(iii) identify assumptions that the party’s attorney provided and that the
expert relied on in forming the opinions to be expressed.
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(b)(7)(C) Expert employed only for trial preparation. Ordinarily, a party may not, by
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interrogatories or otherwise, discover facts known or opinions held by an expert who
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has been retained or specially employed by another party in anticipation of litigation or
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to prepare for trial and who is not expected to be called as a witness at trial. A party
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may do so only:
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(b)(7)(C)(i) as provided in Rule 35(b); or
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(b)(7)(C)(ii) on showing exceptional circumstances under which it is impracticable for
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the party to obtain facts or opinions on the same subject by other means.
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(b)(8) Claims of privilege or protection of trial preparation materials.
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(b)(8)(A) Information withheld. If a party withholds discoverable information by
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claiming that it is privileged or prepared in anticipation of litigation or for trial, the party
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shall make the claim expressly and shall describe the nature of the documents,
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communications, or things not produced in a manner that, without revealing the
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information itself, will enable other parties to evaluate the claim.
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(b)(8)(B) Information produced. If a party produces information that the party claims
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is privileged or prepared in anticipation of litigation or for trial, the producing party may
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notify any receiving party of the claim and the basis for it. After being notified, a
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receiving party must promptly return, sequester, or destroy the specified information and
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any copies it has and may not use or disclose the information until the claim is resolved.
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A receiving party may promptly present the information to the court under seal for a
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determination of the claim. If the receiving party disclosed the information before being
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notified, it must take reasonable steps to retrieve it. The producing party must preserve
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the information until the claim is resolved.
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(c) Sequence and timing of discovery; tiers; limits on standard discovery;
extraordinary discovery.
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(c)(1) Methods of discovery; sequence and timing of discovery.
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(c)(1) Parties may obtain discovery by one or more of the following methods:
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depositions upon oral examination or written questions; written interrogatories;
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production of documents or things or permission to enter upon land or other property,
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for inspection and other purposes; physical and mental examinations; requests for
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admission; and subpoenas other than for a court hearing or trial.
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(c)(2) Methods of discovery may be used in any sequence, and the fact that a party
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is conducting discovery shall not delay any other party's discovery. Except for cases
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exempt under paragraph (a)(2), a party may not seek discovery from any source before
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that party’s initial disclosure obligations are satisfied.
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(c)(3) Definition of tiers for standard discovery. Actions claiming $50,000 or less in
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damages are permitted standard discovery as described for Tier 1. Actions claiming
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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, but not including punitive damages.
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(c)(5) Limits on standard fact discovery. Standard fact discovery per side (plaintiffs
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collectively, defendants collectively, and third-party defendants collectively) in each tier
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is as follows. The days to complete standard fact discovery are calculated from the date
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the first defendant’s first disclosure is due and do not include expert discovery under
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Rule 26(a)(3)(C) and (D).
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Tier
1
2
3
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Amount of
Damages
$50,000 or less
More than
$50,000 and less
than $300,000 or
non-monetary
relief
$300,000 or more
Draft: April 28, 2011
Total Fact
Deposition
Hours
3
Rule 33
Interrogatories
including all
discrete subparts
0
Rule 34
Requests
for
Production
5
Rule 36
Requests
for
Admission
5
Days to
Complete
Standard
Fact
Discovery
120
15
30
10
20
10
20
10
20
180
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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 responses.
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(d)(1) A party shall make disclosures and responses to discovery based on the
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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.
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(d)(3) A party is not excused from making disclosures or responses because the
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party has not completed investigating the case or because the party challenges the
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sufficiency of another party's disclosures or responses or because another party has not
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made disclosures or responses.
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(d)(4) If a party fails to disclose or to supplement timely a disclosure or response to
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discovery, that party may not use the undisclosed witness, document or material at any
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hearing or trial unless the failure is harmless or the party shows good cause for the
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failure.
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(d)(5) If a party learns that a disclosure or response is incomplete or incorrect in
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some important way, the party must timely provide the additional or correct information
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if it has not been made known to the other parties. The supplemental disclosure or
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response must state why the additional or correct information was not previously
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provided.
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(e) Signing discovery requests, responses, and objections. Every disclosure, request
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for discovery, response to a request for discovery and objection to a request for
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discovery shall be in writing and signed by at least one attorney of record or by the party
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if the party is not represented. The signature of the attorney or party is a certification
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under Rule 11. If a request or response is not signed, the receiving party does not need
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to take any action with respect to it. If a certification is made in violation of the rule, the
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court, upon motion or upon its own initiative, may take any action authorized by Rule 11
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or Rule 37(e).
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(f) Filing. Except as required by these rules or ordered by the court, a party shall not
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file with the court a disclosure, a request for discovery or a response to a request for
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discovery, but shall file only the certificate of service stating that the disclosure, request
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for discovery or response has been served on the other parties and the date of service.
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Advisory Committee Notes
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Disclosure Requirements and Timing. Rule 26(a)(1). The 2011 amendments seek to
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reduce discovery costs by requiring each party to produce, at an early stage in the case,
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and without a discovery request, all of the documents and physical evidence the party
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may offer in its case-in-chief and the names of witnesses the party may call in its case-
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in-chief, with a description of their expected testimony. In this respect, the amendments
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build on the initial disclosure requirements of the prior rules. In addition to the
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disclosures required by the prior version of Rule 26(a)(1), a party must disclose each
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fact witness the party may call in its case-in-chief and a summary of the witness’s
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expected testimony, a copy of all documents the party may offer in its case-in-chief, and
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all documents to which a party refers in its pleadings.
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Not all information will be known at the outset of a case. If discovery is serving its
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proper purpose, additional witnesses, documents, and other information will be
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obtained. The scope and the level of detail required in the initial Rule 26(a)(1)
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disclosures should be viewed in light of this reality. A party, for example, is not required
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to interview every witness it ultimately may call at trial in order to provide a summary of
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the witness’s expected testimony. For witnesses outside a party’s control, it is expected
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that less information would be known at the beginning of a case and therefore any
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summary of their expected testimony would necessarily be limited to what the witness is
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reasonably expected to testify about. Additionally, the summary of the witness’s
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expected testimony should be just that – a summary. The rule does not require prefiled
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testimony or detailed descriptions of everything a witness might say at trial. On the
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other hand, it requires more than the the broad, conclusory statements that often were
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made under the prior version of Rule 26(a)(1) (e.g., “The witness will testify about the
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events in question” or “The witness will testify on causation.”). The intent of this
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requirement is to give the other side basic information that can be used to determine the
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subjects about which the witness is expected to testify at trial, to determine the
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witness’s relative importance to disputed issues in the case, and to enable the opposing
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party to determine if the witness is someone who should be interviewed (if not a party)
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or deposed, or from whom additional information otherwise should be obtained. This
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information is important because of the other discovery limits contained in the 2011
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amendments, particularly the limits on depositions. Likewise, the documents that
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should be provided as part of the Rule 26(a)(1) disclosures are those that a party
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reasonably believes it may use at trial, understanding that not all documents will be
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available at the outset of a case. In this regard, it is important to remember that the duty
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to provide documents and witness information is a continuing one, and disclosures must
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be promptly supplemented as new evidence and witnesses become known as the case
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progresses.
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The amendments also require parties to provide more information about damages
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early in the case. Too often, the subject of damages is deferred until late in the case.
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Early disclosure of damages information is important. Among other things, it is a critical
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factor in determining proportionality. The committee recognizes that damages often
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require additional discovery, and typically are the subject of expert testimony. The Rule
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is not intended to require expert disclosures at the outset of a case. At the same time,
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the subject of damages should not simply be deferred until expert discovery. Parties
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should make a good faith attempt to compute damages to the extent it is possible to do
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so and must in any event provide all discoverable information on the subject, including
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materials related to the nature and extent of the damages.
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The penalty for failing to make timely disclosures is that the evidence may not be
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used in the party’s case-in-chief. To make the disclosure requirement meaningful, and
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to discourage sandbagging, parties must know that if they fail to disclose important
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information that is helpful to their case, they will not be able to use that information at
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trial. The courts will be expected to enforce them unless the failure is harmless or the
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party shows good cause for the failure.
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The 2011 amendments also change the time for making these required disclosures.
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Because the plaintiff controls when it brings the action, plaintiffs must make their
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disclosures within 14 days after service of the first answer. A defendant is required to
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make its disclosures within 28 days after the plaintiff’s first disclosure or after that
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defendant’s appearance, whichever is later. The purpose of early disclosure is to have
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all parties present the evidence they expect to use to prove their claims or defenses,
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thereby giving the opposing party the ability to better evaluate the case and determine
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what additional discovery is necessary and proportional.
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The time periods for making Rule 26(a)(1) disclosures, and the presumptive
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deadlines for completing fact discovery, are keyed to the filing of an answer. If a
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defendant files a motion to dismiss or other Rule 12(b) motion in lieu of an answer,
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these time periods normally would be not begin to run until that motion is resolved.
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Finally, the 2011 amendments eliminate two categories of actions that previously
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were exempt from the mandatory disclosure requirements. Specifically, the
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amendments eliminate the prior exemption for contract actions in which the amount
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claimed is $20,000 or less, and actions in which any party is proceeding pro se. In the
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committee’s view, these types of actions will benefit from the early disclosure
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requirements and the overall reduced cost of discovery.
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Expert Disclosures and Timing. Rule 26(a)(3). Expert discovery has become an
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ever-increasing component of discovery cost. The prior rules sought to eliminate some
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of these costs by requiring the written disclosure of the expert’s opinions and other
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background information. However, because the expert was not required to sign these
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disclosures, and because experts often were allowed to deviate from the opinions
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disclosed, attorneys typically would take the expert’s deposition to ensure the expert
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would not offer “surprise” testimony at trial, thereby increasing rather than decreasing
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the overall cost. The amendments seek to remedy this and other costs associated with
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expert discovery by, among other things, allowing the opponent to choose either a
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deposition of the expert or a written report, but not both; in the case of written reports,
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requiring more comprehensive disclosures, signed by the expert, and making clear that
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experts will not be allowed to testify beyond what is fairly disclosed in a report, all with
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the goal of making reports a reliable substitute for depositions; and incorporating a rule
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that protects from discovery most communications between an attorney and retained
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expert. Discovery of expert opinions and testimony is automatic under Rule 26(a)(3) and
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parties are not required to serve interrogatories or use other discovery devices to obtain
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this information.
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The amendments also address the issue of the “non-retained” expert. Their
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expected testimony must be disclosed and they are subject to depositions similar to a
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fact witness.
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Disclosures of expert testimony are made in sequence, with the party who bears the
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burden of proof on the issue for which expert testimony will be offered going first. Within
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seven days after the close of fact discovery, that party must disclose: (i) the expert’s
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curriculum vitae identifying the expert’s qualifications, publications, and prior testimony;
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(ii) compensation information; (iii) a brief summary of the opinions the expert will offer;
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and (iv) a complete copy of the expert’s file for the case. The file should include all of
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the facts and data that the expert has relied upon in forming the expert’s opinions. If the
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expert has prepared summaries of data, spreadsheets, charts, tables, or similar
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materials, they should be included. If the expert has used software programs to make
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calculations or otherwise summarize or organize data, that information and underlying
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formulas should be provided in native form so it can be analyzed and understood. To
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the extent the expert is relying on depositions or materials produced in discovery, then a
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list of the specific materials relied upon is sufficient. The committee recognizes that
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experts frequently will prepare demonstrative exhibits or other aids to illustrate the
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expert’s testimony at trial, and the costs for preparing these materials can be
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substantial. For that reason, these types of demonstrative aids may be prepared and
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disclosed later, as part of the Rule 26(a)(4) pretrial disclosures when trial is imminent.
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Within seven days after this disclosure, the party opposing the retained expert may
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elect either a deposition or a written report from the expert. A deposition is limited to
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four hours, which is not included in the deposition hours under Rule 26(c)(5), and the
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party taking it must pay the expert’s hourly fee for attending the deposition. If a party
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elects a written report, the expert must provide a signed report containing a complete
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statement of all opinions the expert will express and the basis and reasons for them.
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The intent is not to require a verbatim transcript of exactly what the expert will say at
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trial; instead the expert must fairly disclose the substance of and basis for each opinion
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the expert will offer. The expert may not testify in a party’s case in chief concerning any
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matter that is not fairly disclosed in the report. To achieve the goal of making reports a
378
reliable substitute for depositions, courts are expected to enforce this requirement. If a
379
party elects a deposition, rather than a report, it is up to the party to ask the necessary
380
questions to “lock in” the expert’s testimony. But the expert is expected to be fully
381
prepared on all aspects of his/her trial testimony at the time of the deposition and may
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not leave the door open for additional testimony by qualifying answers to deposition
383
questions.
384
The report or deposition must be completed within 28 days after the election is
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made. After this, the party who does not bear the burden of proof on the issue for which
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expert testimony is offered must make its corresponding disclosures and the opposing
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party may then elect either a deposition or a written report. Under the deadlines
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contained in the rules, expert discovery should take less than three months to complete.
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However, as with the other discovery rules, these deadlines can be altered by
390
stipulation of the parties or order of the court.
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Draft: April 28, 2011
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The amendments also address the issue of testimony from experts other than those
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who are retained or specially employed to provide expert testimony, or whose duties as
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an employee regularly involve giving expert testimony, such as treating physicians,
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police officers, or accident investigators. This issue was addressed by the Supreme
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Court in Drew v. Lee, 2011 UT 15, wherein the court held that reports under the prior
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version of Rule 26(a)(3) are not required for treating physicians.
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There are a number of difficulties inherent in disclosing expert testimony that may be
398
offered from fact witnesses. First, there is often not a clear line between fact and expert
399
testimony. Many fact witnesses have scientific, technical or other specialized
400
knowledge, and their testimony about the events in question often will cross into the
401
area of expert testimony. The rules are not intended to erect artificial barriers to the
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admissibility of such testimony. Second, many of these fact witnesses will not be within
403
the control of the party who plans to call them at trial. These witnesses may not be
404
cooperative, and may not be willing to discuss opinions they have with counsel. Where
405
this is the case, disclosures will necessarily be more limited. On the other hand,
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consistent with the overall purpose of the 2011 amendments, a party should receive
407
advance notice if their opponent will solicit expert opinions from a particular witness so
408
they can plan their case accordingly. In an effort to strike an appropriate balance, the
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rules require that such witnesses be identified and the information about their
410
anticipated testimony should include that which is required under Rule 26(a)(1)(A)(ii)
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which should include any opinion testimony that a party expects to elicit from them at
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trial. If a party has disclosed possible opinion testimony in its Rule 26(a)(1)(A)(ii)
413
disclosures, that party is not required to prepare a separate Rule 26(a)(3)(D) disclosure
414
for the witness. And if that disclosure is made in advance of the witness’s deposition,
415
those opinions should be explored in the deposition and not in a separate expert
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deposition. Rule 26(a)(3)(D) and 26(a)(1)(A)(ii) are not intended to elevate form over
417
substance – all they require is that a party fairly inform its opponent that opinion
418
testimony may be offered from a particular witness. And because a party who expects
419
to offer this testimony normally cannot compel such a witness to prepare a written
420
report, further discovery must be done by interview or by deposition.
Rule 26
Draft: April 28, 2011
421
Finally, the amendments include a new Rule 26(b)(7) that protects from discovery
422
draft expert reports and, with limited exception, communications between an attorney
423
and an expert. These changes are modeled after the recent changes to the Federal
424
Rules of Civil Procedure and are intended to address the unnecessary and costly
425
procedures that often were employed in order to protect such information from
426
discovery, and to reduce “satellite litigation” over such issues.
427
Scope of Discovery—Proportionality. Rule 26(b). Proportionality is the principle
428
governing the scope of discovery. Simply stated, it means that the cost of discovery
429
should be proportional to what is at stake in the litigation.
430
In the past, the scope of discovery was governed by “relevance” or the “likelihood to
431
lead to discovery of admissible evidence.” These broad standards may have secured
432
just results by allowing a party to discover all facts relevant to the litigation. However,
433
they did little to advance two equally important objectives of the rules of civil
434
procedure—the speedy and inexpensive resolution of every action. Accordingly, the
435
former standards governing the scope of discovery have been replaced with the
436
proportionality standards in subpart (b)(1).
437
The concept of proportionality is not new. The prior rule permitted the Court to limit
438
discovery methods if it determined that “the discovery was unduly burdensome or
439
expensive, taking into account the needs of the case, the amount in controversy,
440
limitations on the parties’ resources, and the importance of the issues at stake in the
441
litigation.” The Federal Rules of Civil Procedure contains a similar provision. See Fed.
442
R. Civ. P. 26(b)(2)(C). This method of limiting discovery, however, was rarely invoked
443
either under the Utah rules or federal rules.
444
Under the prior rule, the party objecting to the discovery request had the burden of
445
proving that a discovery request was not proportional. The new rule changes the burden
446
of proof. Today, the party seeking discovery beyond the scope of “standard” discovery
447
has the burden of showing that the request is “relevant to the claim or defense of any
448
party” and that the request satisfies the standards of proportionality
449
The 2011 amendments establish three tiers of standard discovery in Rule 26(c).
450
Ideally, rules of procedure should be crafted to promote predictability for litigants. Rules
451
should limit the need to resort to judicial oversight. Tiered standard discovery seeks to
Rule 26
Draft: April 28, 2011
452
achieve these ends. The “one-size-fits-all” system is rejected. Tiered discovery signals
453
to judges, attorneys, and parties the amount of discovery which by rule is deemed
454
proportional for cases with different amounts in controversy.
455
Any system of rules which permits the facts and circumstances of each case to
456
inform procedure cannot eliminate uncertainty. Ultimately, the trial court has broad
457
discretion in deciding whether a discovery request is proportional. The proportionality
458
standards in subpart (b)(2) and the discovery tiers in subpart (c) mitigate uncertainty by
459
guiding that discretion. The proper application of the proportionality standards will be
460
defined over time by trial and appellate courts.
461
Standard and Extraordinary Discovery. Rule 26(c). As a counterpart to requiring
462
more detailed disclosures under Rule 26(a), the 2011 amendments place new
463
limitations on additional discovery the parties may conduct. Because the committee
464
expects the enhanced disclosure requirements will automatically permit each party to
465
learn the witnesses and evidence the opposing side will offer in its case-in-chief,
466
additional discovery should serve the more limited function of permitting parties to find
467
witnesses, documents, and other evidentiary materials that are harmful, rather than
468
helpful, to the opponent’s case.
469
Rule 26(c) provides for three separate “tiers” of limited, “standard” discovery that are
470
presumed to be proportional to the amount and issues in controversy in the action, and
471
that the parties may conduct as a matter of right. An aggregation of all damages sought
472
by all parties in an action dictates the applicable tier of standard discovery, whether
473
such damages are sought by way of a complaint, counterclaim, or otherwise. The tiers
474
of standard discovery are set forth in a chart that is embedded in the body of the rule
475
itself. “Tier 1” describes a minimal amount of standard discovery that is presumed
476
proportional for cases involving damages of $50,000 or less. “Tier 2” sets forth larger
477
limits on standard discovery that are applicable in cases involving damages above
478
$50,000 but less than $300,000. Finally, “Tier 3” prescribes still greater standard
479
discovery for actions involving damages in excess of $300,000. The tiers also provide
480
presumptive limitations on the time within which standard discovery should be
481
completed, which limitations similarly increase with the amount of damages at issue.
482
After the expiration of the applicable time limitation, a case is presumed to be ready for
Rule 26
Draft: April 28, 2011
483
trial. Actions for non-monetary relief, such as injunctive relief, are subject to the
484
standard discovery limitations of Tier 2, absent an accompanying monetary claim of
485
$300,000 or more, in which case Tier 3 applies. The committee determined these
486
standard discovery limitations based on the expectation that for the majority of cases
487
filed in the Utah State Courts, the magnitude of available discovery and applicable time
488
parameters available under the three-tiered system should be sufficient for cases
489
involving the respective amounts of damages.
490
Despite the expectation that standard discovery according to the applicable tier
491
should be adequate in the typical case, the 2011 amendments contemplate there will be
492
some cases for which standard discovery is not sufficient or appropriate. In such cases,
493
parties may conduct additional discovery that is shown to be consistent with the
494
principle of proportionality. There are two ways to obtain such additional discovery. The
495
first is by stipulation. If the parties can agree additional discovery is necessary, they
496
may stipulate to as much additional discovery as they desire, provided they stipulate the
497
additional discovery is proportional to what is at stake in the litigation and counsel for
498
each party certifies that the party has reviewed and approved a budget for additional
499
discovery. Such a stipulation should be filed before the close of the standard discovery
500
time limit, but only after the completion of standard discovery available under the rule. If
501
these conditions are met, the Court will not second-guess the parties and their counsel
502
and must approve the stipulation.
503
The second method to obtain additional discovery is by motion. The committee
504
recognizes there will be some cases in which additional discovery is appropriate, but the
505
parties cannot agree to the scope of such additional discovery. These may include,
506
among other categories, large and factually complex cases and cases in which there is
507
a significant disparity in the parties’ access to information, such that one party
508
legitimately has a greater need than the other party for additional discovery in order to
509
prepare properly for trial. To prevent a party from taking advantage of this situation, the
510
2011 amendments allow any party to move the Court for additional discovery. As with
511
stipulations for extraordinary discovery, a party filing a motion for extraordinary
512
discovery should do so before the close of the standard discovery time limit, but only
513
after the moving party has completed the standard discovery available to it under the
Rule 26
Draft: April 28, 2011
514
rule. By taking advantage of this discovery, counsel should be better equipped to
515
articulate for the court what additional discovery is needed and why. The party making
516
such a motion must demonstrate that the additional discovery is proportional and certify
517
that the party has reviewed and approved a discovery budget. The burden to show the
518
need for additional discovery, and to demonstrate relevance and proportionality, always
519
falls on the party seeking additional discovery. However, cases in which such additional
520
discovery is appropriate do exist, and it is important for courts to recognize they can and
521
should permit additional discovery in appropriate cases, commensurate with the
522
complexity and magnitude of the dispute.
523
Protective Order Language Moved to Rule 37. The 2011 amendments delete in its
524
entirety the prior language of Rule 26(c) governing motions for protective orders. The
525
substance of that language is now found in Rule 37. The committee determined it was
526
preferable to cover motions to compel, motions for protective orders, and motions for
527
discovery sanctions in a single rule, rather than two separate rules. Accordingly, Rule
528
37 now governs these motions and orders.
529
Consequences of Failure to Disclose. Rule 26(d). If a party fails to disclose or to
530
supplement timely its discovery responses, that party cannot use the undisclosed
531
witness, document, or material at any hearing or trial, absent proof that non-disclosure
532
was harmless or justified by good cause. More complete disclosures increase the
533
likelihood that the case will be resolved justly, speedily, and inexpensively. Not being
534
able to use evidence that a party fails properly to disclose provides a powerful incentive
535
to make complete disclosures. This is true only if trial courts hold parties to this
536
standard. Accordingly, although a trial court retains discretion to determine how properly
537
to address this issue in a given case, the usual and expected result should be exclusion
538
of the evidence.
539
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.