RULE 26 OF THE
FEDERAL RULES OF CIVIL PROCEDURE: GENERAL PROVISIONS REGARDING DISCOVERY; DUTY
OF DISCLOSURE
(a) Required
Disclosures; Methods to Discover Additional Matter.
(1) Initial
Disclosures.
Except in categories of proceedings specified in Rule 26(a)(1)(E), or
to the extent otherwise stipulated or directed by order, a party must, without
awaiting a discovery request, provide to other parties:
(A) the
name and, if known, the address and telephone number of each individual likely
to have discoverable information that the disclosing party may use to support
its claims or defenses, unless solely for impeachment, identifying the subjects
of the information;
(B) a
copy of, or a description by category and location of, all documents, data
compilations, and tangible things that are in the possession, custody, or
control of the party and that the disclosing party may use to support its
claims or defenses, unless solely for impeachment;
(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
(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.
(E) The
following categories of proceedings are exempt from initial disclosure under
Rule 26(a)(1) :
(i) an
action for review on an administrative record;
(ii) a
petition for habeas corpus or other proceeding to challenge a criminal
conviction or sentence;
(iii) an
action brought without counsel by a person in custody of the United States, a
state, or a state subdivision;
(iv) an
action to enforce or quash an administrative summons or subpoena;
(v) an
action by the United States to recover benefit payments;
(vi) an
action by the United States to collect on a student loan guaranteed by the
United States;
(vii) a
proceeding ancillary to proceedings in other courts; and
(viii) an
action to enforce an arbitration award.
These disclosures must be made at or within 14 days after the Rule
26(f) conference unless a different time is set by stipulation or court order,
or unless a party objects during the conference that initial disclosures are
not appropriate in the circumstances of the action and states the objection in
the Rule 26(f) discovery plan. In ruling on the objection, the court must
determine what disclosures ‑ if any ‑ are to be made, and set the
time for disclosure. Any party first served or otherwise joined after the Rule
26(f) conference must make these disclosures within 30 days after being served
or joined unless a different time is set by stipulation or court order. A party
must 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.
(2) Disclosure of Expert Testimony.
(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.
(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.
(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).
(3) Pretrial Disclosures.
In addition to the disclosures required by
Rule 26(a)(1) and (2) , a party must provide to other parties and promptly file
with the court the following information regarding the evidence that it may
present at trial other than solely for impeachment:
(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;
(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
(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 must 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 promptly file a list disclosing (i) any objections to the use under
Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(B),
and (ii) any objection, together with the grounds therefor, that may be made to
the admissibility of materials identified under Rule 26(a)(3)(C). Objections
not so disclosed, other than objections under Rules 402 and 403 of the Federal
Rules of Evidence, are waived unless excused by the court for good cause.
(4) Form of Disclosures.
Unless the court orders otherwise, all
disclosures under Rules 26(a)(1) through (3) must be made in writing, signed,
and served.
(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.
(b) Discovery Scope and Limits.
Unless otherwise limited by order of the
court in accordance with these rules, the scope of discovery is as follows:
(1) In General.
Parties may obtain discovery regarding any
matter, not privileged, that is relevant to the claim or defense of any 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. For good cause, the
court may order discovery of any matter relevant to the subject matter involved
in the action. Relevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible
evidence. All discovery is subject to the limitations imposed by Rule
26(b)(2)(i), (ii), and (iii).
(2) Limitations.
By order, the court may alter the limits in
these rules on the number of depositions and interrogatories or the length of
depositions under Rule 30 . By order or local rule, the court may also limit
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 Rule 26(c) .
(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.
(4) Trial Preparation: Experts.
(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.
(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.
(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.
(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.
(c) Protective Orders.
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:
(1) that the disclosure or discovery not be had;
(2) that the disclosure or discovery may be had
only on specified terms and conditions, including a designation of the time or
place;
(3) that the discovery may be had only by a method
of discovery other than that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or
that the scope of the disclosure or discovery be limited to certain matters;
(5) that discovery be conducted with no one present
except persons designated by the court;
(6) that a deposition, after being sealed, be
opened only by order of the court;
(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
(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.
(d) Timing and Sequence of Discovery.
Except in categories of proceedings exempted
from initial disclosure under Rule 26(a)(1)(E), or when authorized under these
rules or by order or agreement of the parties, a party may not seek discovery
from any source before the parties have conferred as required by Rule 26(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, does not operate to delay any other party's discovery.
(e) Supplementation of Disclosures and
Responses.
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 ourt or in the
following circumstances:
(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.
(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.
(f) Meeting of Parties; Planning for
Discovery.
Except in categories of proceedings exempted
from initial disclosure under Rule 26(a)(1)(E) or when otherwise ordered, the
parties must, as soon as practicable and in any event at least 21 days before a
scheduling conference is held or a scheduling order is due under Rule 16(b),
confer to consider 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 Rule 26(a)(1), and to develop a
proposed discovery plan that indicates the parties’ views and
proposals concerning:
(1) what changes should be made in the timing,
form, or requirement for disclosures under Rule 26(a), including a statement as
to when disclosures under Rule 26(a)(1) were made or will be made;
(2) the subjects on which discovery may be needed,
when discovery should be cmpleted, and whether discovery should be conducted in
phases or be limited to or focused upon particular issues;
(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
(4) any other orders that should be entered by the
court under Rule 26(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
the conference, for attempting in good faith to agree on the proposed discovery
plan, and for submitting to the court within 14 days after the conference a
written report outlining the plan. A court may order that the parties or
attorneys attend the conference in person. If necessary to comply with its
expedited schedule for Rule 16(b) conferences, a court may by local rule (i)
require that the conference between the parties occur fewer than 21 days before
the scheduling conference is held or a scheduling order is due under Rule
16(b), and (ii) require that the written report outlining the discovery plan be
filed fewer than 14 days after the conference between the parties, or excuse
the parties from submitting a written report and permit them to report orally
on their discovery plan at the Rule 16(b) conference.
(g) Signing of Disclosures, Discovery
Requests, Responses, and Objections.
(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.
(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:
(A) consistent with these rules and warranted by
existing law or a good faith argument for the extension, modification, or
reversal of existing law;
(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.
(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.
HISTORY: (Amended Mar. 19, 1948; July 1, 1963; July 1, 1966; July 1,
1970;
Aug. 1, 1980; Aug. 1, 1983; Aug. 1, 1987; Dec. 1, 1993)