Rule
26. General Provisions Governing Discovery; Duty of
Disclosure
Required Disclosures; Methods to discover additional matter
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(1) Initial Disclosures. Except to the extent otherwise stipulated or
directed by order or local rule, a party shall, without awaiting a discovery
request, provide to other parties:
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(A) the name and, if known, the address and
telephone number of each individual likely to have discoverable information
relevant to disputed facts alleged with particularity in the pleadings,
identifying the subjects of the information;
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(B) a copy of, or a description by category and
location of, all documents, data compilations, and tangible things in the
possession, custody, or control of the party that are relevant to disputed
facts alleged with particularity in the pleadings;
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(C) a computation of any category of damages
claimed by the disclosing party, making available for inspection and copying as
under Rule 34 the documents or other evidentiary material, not privileged or
protected from disclosure, on which such computation is based, including
materials bearing on the nature and extent of injuries suffered; and
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(D) for inspection and copying as under Rule 34
any insurance agreement under which any person carrying on an insurance
business may be liable to satisfy part or all of a judgment which may be
entered in the action or to indemnify or reimburse for payments made to satisfy
the judgment. Unless otherwise stipulated or directed by the court, these
disclosures shall be made at or within 10 days after the meeting of the parties
under subdivision (f). A party shall make its initial disclosures based on the
information then reasonably available to it and is not excused from making its
disclosures because it has not fully completed its investigation of the case or
because it challenges the sufficiency of another party's disclosures or because
another party has not made its disclosures. |
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(2) Disclosure of Expert Testimony.
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(A) In addition to the disclosures required by
paragraph (1), a party shall disclose to other parties the identity of any
person who may be used at trial to present evidence under Rules 702, 703, or
705 of the Federal Rules of Evidence.
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(B) Except as otherwise stipulated or directed by
the court, this disclosure shall, with respect to a witness who is retained or
specially employed to provide expert testimony in the case or whose duties as
an employee of the party regularly involve giving expert testimony, be
accompanied by a written report prepared and signed by the witness. The report
shall contain a complete statement of all opinions to be expressed and the
basis and reasons therefor; the data or other information considered by the
witness in forming the opinions; any exhibits to be used as a summary of or
support for the opinions; the qualifications of the witness, including a list
of all publications authored by the witness within the preceding ten years; the
compensation to be paid for the study and testimony; and a listing of any other
cases in which the witness has testified as an expert at trial or by deposition
within the preceding four years.
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(C) These disclosures shall be made at the times
and in the sequence directed by the court. In the absence of other directions
from the court or stipulation by the parties, the disclosures shall be made at
least 90 days before the trial date or the date the case is to be ready for
trial or, if the evidence is intended solely to contradict or rebut evidence on
the same subject matter identified by another party under paragraph (2)(B),
within 30 days after the disclosure made by the other party. The parties shall
supplement these disclosures when required under subdivision
(e)(1). |
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(3) Pretrial Disclosures. In addition to the disclosures required in
the preceding paragraphs, a party shall provide to other parties the following
information regarding the evidence that it may present at trial other than
solely for impeachment purposes:
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(A) the name and, if not previously provided, the
address and telephone number of each witness, separately identifying those whom
the party expects to present and those whom the party may call if the need
arises;
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(B) the designation of those witnesses whose
testimony is expected to be presented by means of a deposition and, if not
taken stenographically, a transcript of the pertinent portions of the
deposition testimony; and
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(C) an appropriate identification of each
document or other exhibit, including summaries of other evidence, separately
identifying those which the party expects to offer and those which the party
may offer if the need arises.
Unless otherwise directed by the
court, these disclosures shall be made at least 30 days before trial. Within 14
days thereafter, unless a different time is specified by the court, a party may
serve and file a list disclosing (i) any objections to the use under Rule 32(a)
of a deposition designated by another party under subparagraph (B) and (ii) any
objection, together with the grounds therefor, that may be made to the
admissibility of materials identified under subparagraph (C). Objections not so
disclosed, other than objections under Rules 402 and 403 of the Federal Rules
of Evidence, shall be deemed waived unless excused by the court for good cause
shown.
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(4) Form of Disclosures; Filing. Unless otherwise
directed by order or local rule, all disclosures under paragraphs (1) through
(3) shall be made in writing, signed, served, and promptly filed with the
court.
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(5) Methods to Discover Additional Matter.
Parties may obtain discovery by one or more of the following methods:
depositions upon oral examination or written questions; written
interrogatories; production of documents or things or permission to enter upon
land or other property under Rule 34 or 45(a)(1)(C), for inspection and other
purposes; physical and mental examinations; and requests for admission. |
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(b) Discovery Scope and
Limits.
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Unless otherwise limited by order of the court in
accordance with these rules, the scope of discovery is as follows:
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(1) In General. Parties may obtain discovery
regarding any matter, not privileged, which is relevant to the subject matter
involved in the pending action, whether it relates to the claim or defense of
the party seeking discovery or to the claim or defense of any other party,
including the existence, description, nature, custody, condition, and location
of any books, documents, or other tangible things and the identity and location
of persons having knowledge of any discoverable matter. The information sought
need not be admissible at the trial if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.
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(2) Limitations. By order or by local rule, the
court may alter the limits in these rules on the number of depositions and
interrogatories and may also limit the length of depositions under Rule 30 and
the number of requests under Rule 36. The frequency or extent of use of the
discovery methods otherwise permitted under these rules and by any local rule
shall be limited by the court if it determines that: (i) the discovery sought
is unreasonably cumulative or duplicative, or is obtainable from some other
source that is more convenient, less burdensome, or less expensive; (ii) the
party seeking discovery has had ample opportunity by discovery in the action to
obtain the information sought; or (iii) the burden or expense of the proposed
discovery outweighs its likely benefit, taking into account the needs of the
case, the amount in controversy, the parties' resources, the importance of the
issues at stake in the litigation, and the importance of the proposed discovery
in resolving the issues. The court may act upon its own initiative after
reasonable notice or pursuant to a motion under subdivision (c).
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(3) Trial Preparation: Materials. Subject to the
provisions of subdivision (b)(4) of this rule, a party may obtain discovery of
documents and tangible things otherwise discoverable under subdivision (b)(1)
of this rule and prepared in anticipation of litigation or for trial by or for
another party or by or for that other party's representative (including the
other party's attorney, consultant, surety, indemnitor, insurer, or agent) only
upon a showing that the party seeking discovery has substantial need of the
materials in the preparation of the party's case and that the party is unable
without undue hardship to obtain the substantial equivalent of the materials by
other means. In ordering discovery of such materials when the required showing
has been made, the court shall protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the litigation. A party may obtain without
the required showing a statement concerning the action or its subject matter
previously made by that party. Upon request, a person not a party may obtain
without the required showing a statement concerning the action or its subject
matter previously made by that person. If the request is refused, the person
may move for a court order. The provisions of Rule 37(a)(4) apply to the award
of expenses incurred in relation to the motion. For purposes of this paragraph,
a statement previously made is (A) a written statement signed or otherwise
adopted or approved by the person making it, or (B) a stenographic, mechanical,
electrical, or other recording, or a transcription thereof, which is a
substantially verbatim recital of an oral statement by the person making it and
contemporaneously recorded.
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(4) Trial Preparation: Experts.
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(A) A party may depose any person who has been
identified as an expert whose opinions may be presented at trial. If a report
from the expert is required under subdivision (a)(2)(B), the deposition shall
not be conducted until after the report is provided.
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(B) A party may, through interrogatories or by
deposition, discover facts known or opinions held by an expert who has been
retained or specially employed by another party in anticipation of litigation
or preparation for trial and who is not expected to be called as a witness at
trial, only as provided in Rule 35(b) or upon a showing of exceptional
circumstances under which it is impracticable for the party seeking discovery
to obtain facts or opinions on the same subject by other means.
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(C) Unless manifest injustice would result, (i)
the court shall require that the party seeking discovery pay the expert a
reasonable fee for time spent in responding to discovery under this
subdivision; and (ii) with respect to discovery obtained under subdivision
(b)(4)(B) of this rule the court shall require the party seeking discovery to
pay the other party a fair portion of the fees and expenses reasonably incurred
by the latter party in obtaining facts and opinions from the expert.
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(5) Claims of Privilege or Protection of Trial
Preparation Materials. When a party withholds information otherwise
discoverable under these rules by claiming that it is privileged or subject to
protection as trial preparation material, the party shall make the claim
expressly and shall describe the nature of the documents, communications, or
things not produced or disclosed in a manner that, without revealing
information itself privileged or protected, will enable other parties to assess
the applicability of the privilege or protection. |
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(c) Protective
Orders.
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Upon motion by a party or by the person from whom
discovery is sought, accompanied by a certification that the movant has in good
faith conferred or attempted to confer with other affected parties in an effort
to resolve the dispute without court action, and for good cause shown, the
court in which the action is pending or alternatively, on matters relating to a
deposition, the court in the district where the deposition is to be taken may
make any order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense, including one
or more of the following:
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(1) that the disclosure or discovery not be
had;
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(2) that the disclosure or discovery may be had
only on specified terms and conditions, including a designation of the time or
place;
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(3) that the discovery may be had only by a
method of discovery other than that selected by the party seeking
discovery;
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(4) that certain matters not be inquired into, or
that the scope of the disclosure or discovery be limited to certain
matters;
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(5) that discovery be conducted with no one
present except persons designated by the court;
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(6) that a deposition, after being sealed, be
opened only by order of the court;
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(7) that a trade secret or other confidential
research, development, or commercial information not be revealed or be revealed
only in a designated way; and
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(8) that the parties simultaneously file
specified documents or information enclosed in sealed envelopes to be opened as
directed by the court.
If the motion for a protective order is
denied in whole or in part, the court may, on such terms and conditions as are
just, order that any party or other person provide or permit discovery. The
provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation
to the motion.
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(d) Timing and Sequence
of Discovery.
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Except when authorized under these rules or by
local rule, order, or agreement of the parties, a party may not seek discovery
from any source before the parties have met and conferred as required by
subdivision (f). Unless the court upon motion, for the convenience of parties
and witnesses and in the interests of justice, orders otherwise, methods of
discovery may be used in any sequence, and the fact that a party is conducting
discovery, whether by deposition or otherwise, shall not operate to delay any
other party's discovery. |
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(e) Supplementation of
Disclosures and Responses.
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A party who has made a disclosure under
subdivision (a) or responded to a request for discovery with a disclosure or
response is under a duty to supplement or correct the disclosure or response to
include information thereafter acquired if ordered by the court or in the
following circumstances:
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(1) A party is under a duty to supplement at
appropriate intervals its disclosures under subdivision (a) if the party learns
that in some material respect the information disclosed is incomplete or
incorrect and if the additional or corrective information has not otherwise
been made known to the other parties during the discovery process or in
writing. With respect to testimony of an expert from whom a report is required
under subdivision (a)(2)(B) the duty extends both to information contained in
the report and to information provided through a deposition of the expert, and
any additions or other changes to this information shall be disclosed by the
time the party's disclosures under Rule 26(a)(3) are due.
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(2) A party is under a duty seasonably to amend a
prior response to an interrogatory, request for production, or request for
admission if the party learns that the response is in some material respect
incomplete or incorrect and if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process or
in writing. |
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(f) Meeting of Parties;
Planning for Discovery.
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Except in actions exempted by local rule or when
otherwise ordered, the parties shall, as soon as practicable and in any event
at least 14 days before a scheduling conference is held or a scheduling order
is due under Rule 16(b), meet to discuss the nature and basis of their claims
and defenses and the possibilities for a prompt settlement or resolution of the
case, to make or arrange for the disclosures required by subdivision (a)(1),
and to develop a proposed discovery plan. The plan shall indicate the parties'
views and proposals concerning:
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(1) what changes should be made in the timing,
form, or requirement for disclosures under subdivision (a) or local rule,
including a statement as to when disclosures under subdivision (a)(1) were made
or will be made;
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(2) the subjects on which discovery may be
needed, when discovery should be completed, and whether discovery should be
conducted in phases or be limited to or focused upon particular issues;
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(3) what changes should be made in the
limitations on discovery imposed under these rules or by local rule, and what
other limitations should be imposed; and
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(4) any other orders that should be entered by
the court under subdivision (c) or under Rule 16(b) and (c).
The attorneys of record and all
unrepresented parties that have appeared in the case are jointly responsible
for arranging and being present or represented at the meeting, for attempting
in good faith to agree on the proposed discovery plan, and for submitting to
the court within 10 days after the meeting a written report outlining the
plan.
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(g) Signing of
Disclosures, Discovery Requests, Responses, and Objections.
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(1) Every disclosure made pursuant to subdivision
(a)(1) or subdivision (a)(3) shall be signed by at least one attorney of record
in the attorney's individual name, whose address shall be stated. An
unrepresented party shall sign the disclosure and state the party's address.
The signature of the attorney or party constitutes a certification that to the
best of the signer's knowledge, information, and belief, formed after a
reasonable inquiry, the disclosure is complete and correct as of the time it is
made.
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(2) Every discovery request, response, or
objection made by a party represented by an attorney shall be signed by at
least one attorney of record in the attorney's individual name, whose address
shall be stated. An unrepresented party shall sign the request, response, or
objection and state the party's address. The signature of the attorney or party
constitutes a certification that to the best of the signer's knowledge,
information, and belief, formed after a reasonable inquiry, the request,
response, or objection is:
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(A) consistent with these rules and warranted by
existing law or a good faith argument for the extension, modification, or
reversal of existing law;
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(B) not interposed for any improper purpose, such
as to harass or to cause unnecessary delay or needless increase in the cost of
litigation; and (C) not unreasonable or unduly burdensome or expensive, given
the needs of the case, the discovery already had in the case, the amount in
controversy, and the importance of the issues at stake in the
litigation.
If a request, response, or
objection is not signed, it shall be stricken unless it is signed promptly
after the omission is called to the attention of the party making the request,
response, or objection, and a party shall not be obligated to take any action
with respect to it until it is signed.
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(3) If without substantial justification a
certification is made in violation of the rule, the court, upon motion or upon
its own initiative, shall impose upon the person who made the certification,
the party on whose behalf the disclosure, request, response, or objection is
made, or both, an appropriate sanction, which may include an order to pay the
amount of the reasonable expenses incurred because of the violation, including
a reasonable attorney's fee. |
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