RULE 26. GENERAL PROVISIONS GOVERNING DISCOVERY
1 (a) Discovery Methods. Parties may obtain discovery by one or more of the
2 following methods:
3 (1) depositions on oral examination or written questions;
4 (2) written interrogatories;
5 (3) production of documents or things or permission to enter on land or
6 other property, for inspection and other purposes;
7 (4) physical and mental examinations; and
8 (5) requests for admission.
9 (b) Discovery Scope and Limits.
10 (1) In General.
11 (A) Scope. Unless otherwise limited by court order, the scope of discovery
12 is as follows: Parties may obtain discovery regarding any nonprivileged matter that
13 is relevant to any party's claim or defense, including the existence, description,
14 nature, custody, condition, and location of any documents, electronically stored
15 information, or other tangible things and the identity and location of persons who
16 know of any discoverable matter. For good cause, the court may order the
17 discovery of any matter relevant to the subject matter involved in the action.
18 Relevant information need not be admissible at the trial if the discovery appears
19 reasonably calculated to lead to the discovery of admissible evidence.
purposes of the discovery rules, the phrase "electronically stored
includes reasonably accessible metadata that will enable the discovering
have the ability to access such information as the date sent, date received,
and recipients. The phrase does not include other metadata unless the
otherwise or the court orders otherwise upon motion of a party and a
good cause for the production of certain metadata. All discovery
is subject to the
26 limitations imposed by Rule 26(b)(1)(B)(i).
27 (B) Limitations on Frequency and Extent.
28 (i) When Required. On motion or on its own, the court must limit the
29 frequency or extent of discovery otherwise allowed by these rules if it determines
31 discovery sought is unreasonably cumulative or duplicative, or it can be
32 obtained from some other source that is more convenient, less burdensome, or less
34 the party seeking discovery has had ample opportunity to obtain the
35 information by discovery in the action; or
36 the burden or expense of the proposed discovery outweighs its likely
37 benefit, considering the needs of the case, the amount in controversy, the parties'
38 resources, the importance of the issues at stake in the action, and the importance of
39 the discovery in resolving the issues.
40 (ii) Specific Limitations on Electronically Stored Information. For the
41 purposes of the discovery rules, the phrase "electronically stored information"
42 includes reasonably accessible metadata that will enable the discovering party to
43 have the ability to access such information as the date sent, date received, author,
44 and recipients. The phrase does not include other metadata unless the parties agree
45 otherwise or the court orders otherwise upon motion of a party and a showing of
46 good cause for the production of certain metadata. A party need not provide
47 discovery of electronically stored information from sources that the party identifies
48 as not reasonably accessible because of undue burden or cost. On motion to
49 compel discovery or for a protective order, the party from whom discovery is
50 sought must show that the information is not reasonably accessible because of
51 undue burden or cost. If that showing is made, the court may nonetheless order
52 discovery from such sources if the requesting party shows good cause, considering
53 the limitations of Rule 26(b)(1)(B). The court may specify conditions for the
55 (2) Insurance Agreements. If a person carrying on an insurance business
56 might be liable to satisfy part or all of a judgment in an action or to indemnify or
57 reimburse for payments made to satisfy the judgment, a party may obtain discovery
58 of the existence and contents of the insurance agreement. Disclosure of the
59 insurance agreement is not reason for its admission in evidence at trial. An
60 application for insurance may not be treated as part of an insurance agreement.
61 (3) Trial Preparation Materials.
62 (A) Documents and Tangible Objects. Ordinarily, a party may not discover
63 documents and tangible things that are prepared in anticipation of litigation or for
64 trial by or for another party or its representative (including the other party's
65 attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule
66 26(b)(5), these materials may be discovered if:
67 (i) they are otherwise discoverable under Rule 26(b)(1); and
68 (ii) the party shows that it has substantial need of the materials to prepare its
69 case and cannot, without undue hardship, obtain their substantial equivalent by
70 other means.
71 (B) Protection Against Disclosure. If the court orders discovery of those
72 materials, it must protect against disclosure of the mental impressions, conclusions,
73 opinions, or legal theories of a party's attorney or other representative concerning
74 the litigation.
75 (C) Previous Statement. Any party or other person may, on request and
76 without the required showing, obtain the person's own previous statement about
77 the action or its subject matter. If the request is refused, the person may move for a
78 court order and Rule 37(a)(5) applies to the award of expenses. A previous
79 statement is:
80 (i) a written statement that the person has signed or otherwise adopted or
81 approved; or
82 (ii) a contemporaneous stenographic, mechanical, electrical, or other
83 recording, or a transcription of it, that recites substantially verbatim the person's
84 oral statement.
85 (4) Trial Preparation Experts.
86 (A) Expert Who May Testify. Discovery of facts known and opinions held
87 by experts, otherwise discoverable under Rule 26(b)(1) and acquired or developed
88 in anticipation of litigation or for trial, may be obtained only as follows:
89 (i) a party may through interrogatories require any other party to identify
90 each person whom the other party expects to call as an expert witness at trial; to
92 the subject matter on which the expert is expected to testify;
and to state the substance of the facts and opinions to
which the expert is
94 expected to testify; and
and a summary of the grounds for each opinion;
96 (ii) a party may depose any person who has been identified as an expert
97 witness whose opinions may be presented at trial unless the court finds, on motion,
98 that the deposition is unnecessary, overly burdensome, or unfairly oppressive.
99 (B) Expert Employed Only for Trial Preparation. Ordinarily, a party may
100 not, by interrogatories or deposition, discover facts known or opinions held by an
101 expert who has been retained or specially employed by another party in
102 anticipation of litigation or to prepare for trial and who is not expected to be called
103 as a witness at trial. But a party may do so only:
104 (i) as provided in Rule 35(b); or
105 (ii) on showing exceptional circumstances under which it is impracticable
106 for the party to obtain facts or opinions on the same subject by other means.
107 (C) Payment. Unless manifest injustice would result, the court must require
108 that the party seeking discovery:
109 (i) pay the expert a reasonable fee for time spent in responding to discovery
110 under Rule 26(b)(4)(A) or (B); and
111 (ii) for discovery under Rule 26(b)(4)(A) the court may require, and for
112 discovery under Rule 26(b)(4)(B) the court must require the party seeking
113 discovery to pay the other party a fair portion of the fees and expenses it
114 reasonably incurred in obtaining the expert's facts and opinions.
115 (5) Claiming Privilege or Protecting Trial Preparation Materials.
116 (A) Information Withheld. When a party withholds information otherwise
117 discoverable by claiming that the information is privileged or subject to protection
118 as trial-preparation material, the party must:
119 (i) expressly make the claim; and
120 (ii) describe the nature of the documents, communications, or tangible
121 things not produced or disclosed, and do so in a matter that, without revealing
122 information itself privileged or protected, will enable other parties to assess the
124 (B) Information Produced. If information is produced in discovery that is
125 subject to a claim of privilege or of protection as trial-preparation material, the
126 party making the claim may notify any party that received the information of the
127 claim and the basis for it. After being notified, a receiving party must promptly
128 return, sequester, or destroy the specified information and any copies it has and
129 may not use or disclose the information until the claim is resolved. A receiving
130 party may promptly present the information to the court under seal for
131 determination of the claim. If the receiving party disclosed the information before
132 being notified, it must take reasonable steps to retrieve it. The producing party
133 must preserve the information until the claim is resolved.
134 (c) Protective Orders.
135 (1) In General. A party or any person from whom discovery is sought may
136 move for a protective order in the court where the action is pending, or as an
137 alternative on matters relating to a deposition, in the court in the district where the
138 deposition will be taken. The court may, for good cause shown, issue an order to
139 protect a party or person from annoyance, embarrassment, oppression, or undue
140 burden or expense, including one or more of the following:
141 (A) forbidding the discovery;
142 (B) specifying terms and conditions, including time or place for the
144 (C) prescribing a discovery other than the one selected by the party seeking
146 (D) forbidding inquiry into certain matters, or limiting the scope of
147 discovery to certain matters;
148 (E) designating the persons who may be present while the discovery is
150 (F) requiring that a deposition be sealed and opened only on court order;
151 (G) requiring that a trade secret or other confidential research, development,
152 or commercial information not be revealed or be revealed only in a specified way;
154 (H) requiring that the parties simultaneously file specified sealed documents
155 or information to be opened as the court directs.
156 (2) Ordering Discovery. If a motion for a protective order is wholly or
157 partially denied, the court may, on just terms, order that any party or person
158 provide or permit discovery.
159 (3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses.
160 (d) Sequence and Timing of Discovery. Unless, on motion, the court orders
161 otherwise for the parties' and witnesses' convenience and in the interests of justice,
162 methods of discovery may be used in any sequence and discovery by one party
163 does not require any other party to delay its discovery.
164 (e) Supplementing Responses.
165 (1) In General. A party who has responded to an interrogatory, request for
166 production, or request for admission, must supplement or correct its response:
167 (A) in a timely manner if the party learns that in some material respect the
168 response is incomplete or incorrect, and if the additional or corrective information
169 has not otherwise been made known to the parties during the discovery process or
170 in writing; or
171 (B) as ordered by the court.
172 (2) Witnesses. A party has a duty to timely supplement a response about:
173 (A) the identity and location of persons having knowledge of discoverable
174 matters, and
175 (B) the identity of each person expected to be called as an expert witness at
176 trial, the subject matter on which the person is expected to testify, and the
177 substance of the person's testimony.
178 (f) Discovery Meeting, Discovery Conference, Discovery Plan.
179 (1) Discovery Meeting. No earlier than 40 days after the complaint is filed
180 in an action, any party's attorney or a self-represented party may request in writing
181 a meeting on the subject of discovery, including the discovery of electronically
182 stored information. If such a request is made, the parties must meet within 21 days,
183 unless agreed otherwise by the parties or their attorneys or another time for the
184 meeting is ordered by the court. Even if the parties or their attorneys do not seek to
185 have a discovery meeting, at any time after the complaint is filed the court may
186 direct the parties or their attorneys to appear before it for a discovery conference.
187 (2) Matters for Consideration. During a discovery meeting held under Rule
188 26(f)(1), the attorneys and any self-represented parties must:
189 (A) consider the nature and basis of the parties' claims and defenses and the
190 possibilities for promptly settling or resolving the case, and
191 (B) discuss the preparation of a discovery plan as set forth in Rule 26 (f)(3).
192 (3) Conduct of Meeting. Attorneys for the parties, and any self-represented
193 parties, that have appeared in the case are jointly responsible for arranging the
194 meeting, for being prepared to discuss a discovery plan, and for attempting in good
195 faith to agree on a discovery plan. The meeting may be held by telephone, by
196 videoconference, or in person, or by a combination of methods, unless the court,
197 on motion, orders the attorneys and the self-represented parties to attend in person.
198 (4) Discovery Plan or Report.
199 (A) In General. If a discovery plan is agreed on, it must be submitted to the
200 court within 14 days after the meeting, and the parties may request a conference
201 with the court regarding the plan. If the parties do not agree on a discovery plan,
202 they must submit to the court within 14 days after the meeting a joint report
203 containing those parts of a discovery plan on which they agree and the position of
204 each of the parties on the parts upon which they disagree. Unless the parties agree
205 otherwise, the attorney for the first plaintiff listed on the complaint is responsible
206 for submitting the discovery plan or joint report.
207 (B) Discovery Plan Contents. A discovery plan must contain the following:
208 (i) a statement of the issues as they then appear;
209 (ii) a proposed plan and schedule of discovery, including the discovery of
210 electronically stored information;
211 (iii) with respect to electronically stored information, and if appropriate
212 under the circumstances of the case, a reference to the preservation of such
213 information, the media form, format, or procedures by which such information will
214 be produced, the allocation of the costs of preservation, production, and, if
215 necessary, restoration, of such information, the method for asserting or preserving
216 claims of privilege or of protection of the information as trial-preparation materials
217 if different from that provided in Rule 26 (b)(5), the method for asserting or
218 preserving confidentiality and proprietary status, and any other matters addressed
219 by the parties;
220 (iv) any limitations proposed to be placed on discovery, including, if
221 appropriate under the circumstances of the case, that discovery be conducted in
222 phases or be limited to or focused on particular issues;
223 (v) when discovery should be completed; and
224 (vi) if appropriate under the circumstances of the case, any limitations or
225 conditions under Rule 26 (c) regarding protective orders.
226 (5) Discovery Conference. If the parties are unable to agree to a discovery
227 plan at a meeting held under Rule 26 (f)(1), they must, on motion of any party,
228 appear before the court for a discovery conference at which the court must order
229 the entry of a discovery plan after consideration of the report required to be
230 submitted under Rule 26 (f)(4)(A) and the position of the parties. The order may
231 address other matters, including the allocation of discovery costs, as are necessary
232 for the proper management of discovery in the action. An order may be altered or
233 amended as justice may require. The court may combine the discovery conference
234 with a pretrial conference authorized by Rule 16.
235 (g) Signing Discovery Request, Responses, and Objections.
236 (1) Signature Required; Effect of Signature. Every discovery request,
237 response, or objection must be signed by at least one attorney of record in the
238 attorney's individual name, or by the party personally, if self-represented, state the
239 signer's address, electronic mail address for electronic service, telephone number,
240 and State Board of Law Examiners identification number, if applicable. By
241 signing, the attorney or party certifies that the signer has read the request,
242 response, or objection, and that to the best of the signer's knowledge, information,
243 and belief formed after a reasonable inquiry it is:
244 (A) consistent with these rules and warranted by existing law or by a good
245 faith argument for extending, modifying or reversing existing law;
246 (B) not interposed for any improper purpose, such as to harass, cause
247 unnecessary delay or needlessly increase the cost of litigation; and
248 (C) neither unreasonable nor unduly burdensome or expensive, considering
249 the needs of the case, prior discovery in the case, the amount in controversy, and
250 the importance of the issues at stake in the litigation.
251 (2) Failure to Sign. Other parties have no duty to act on an unsigned
252 request, response, or objection until it is signed, and the court, on motion or on its
253 own, must strike it unless a signature is promptly supplied after the omission is
254 called to the attorney's or party's attention.
255 (3) Sanction for Improper Certification. If a certification violates this rule,
256 without substantial justification, the court, on motion or its own, must impose an
257 appropriate sanction on the signer, the party on whose behalf the signer was acting,
258 or both. The sanction may include an order to pay the reasonable expenses,
259 including attorney's fees, caused by the violation.
260 EXPLANATORY NOTE
261 Rule 26 was amended, effective July 1, 1981; March 1, 1986; March 1,
262 1990; March 1, 1996; March 1, 2008; March 1, 2011; March 1, 2013; March 1,
263 2015; March 1, 2017.
264 Rule 26 is derived from Fed.R.Civ.P. 26
265 As amended, effective March 1, 1996, a party deposing another party's
266 expert witness under subdivision (b)(4)(A)(ii) must pay the expert a reasonable fee
267 under subdivision (b)(4)(C), even though a court order has not been obtained
268 authorizing the deposition or commanding payment of expert witness fees.
269 Rule 26 was amended, effective March 1, 2008, to implement changes
270 related to discovery of electronically stored information. The changes reflect the
271 2006 amendments to Fed.R.Civ.P. 26. Subdivision (b) was amended to incorporate
272 a new subparagraph (b)(2)(B) on limitations to discovery of electronic information.
273 A new paragraph (b)(6) was also added to address claims of privilege or protection
274 of trial preparation materials.
275 Rule 26 was amended, effective March 1, 2011, in response to the
276 December 1, 2007, revision of the Federal Rules of Civil Procedure. The language
277 and organization of the rule were changed to make the rule more easily understood
278 and to make style and terminology consistent throughout the rules.
279 Subparagraph (b)(1)(A) was amended, effective March 1, 2013, to include a
280 definition of "electronically stored information" and to designate what types of
281 metadata may be discovered. Effective March 1, 2017, this language was
282 transferred to subparagraph (b)(1)(B)(ii).
283 Subparagraph (c)(1)(H) was amended, effective March 1, 2015, to remove a
284 reference to filing documents in a sealed paper envelope. Items are filed with the
285 court electronically, and may be designated as sealed when submitted.
286 Subdivision (f) was amended, effective March 1, 2013, to provide a
287 procedure for discovery meetings and conferences and for the formulation of
288 discovery plans and reports, with an emphasis on discussing and planning for the
289 discovery of electronic information.
290 Paragraph (g)(1) was amended, effective March 1, 2015, to specify that the
291 attorney's electronic mail address for electronic service must be included with the
293 SOURCES: Joint Procedure Committee Minutes of May 12-13, 2016, pages
294 10-15; January 28-29, 2016, pages 13-14; April 24-25, 2014, page 25; January
295 26-27, 2012, page 17-19; January 29-30, 2009, page 6; September 25, 2008, pages
296 21-22; January 25, 2007, pages 9-10; September 28-29, 2006, pages 18-20;
297 January 26-27, 1995, pages 10-12; September 29-30, 1994, pages 21-22; April 20,
298 1989, page 2; December 3, 1987, page 11; April 26, 1984, page 28; January 20,
299 1984, pages 23-31; December 11-12, 1980, page 2; October 30-31, 1980, pages
300 9-10; September 20-21, 1979, page 19; Fed.R.Civ.P. 26.
301 CROSS REFERENCE: N.D.R.Civ.P. 16 (Pretrial Procedure-Formulating
302 Issues), N.D.R.Civ.P. 28 (Persons Before Whom Depositions May Be Taken),
303 N.D.R.Civ.P. 29 (Stipulations Regarding Discovery Procedure), N.D.R.Civ.P. 30
304 (Depositions Upon Oral Examination), N.D.R.Civ.P. 30.1 (Uniform Audio-Visual
305 Deposition Rule), N.D.R.Civ.P. 31 (Depositions of Witnesses Upon Written
306 Questions), N.D.R.Civ.P. 33 (Interrogatories to Parties), N.D.R.Civ.P. 34
307 (Production of Documents and Things and Entry Upon Land for Inspection and
308 Other Purposes), N.D.R.Civ.P. 35 (Physical and Mental Examination of Persons),
309 N.D.R.Civ.P. 36 (Requests for Admission), and N.D.R.Civ.P. 37 (Failure to Make
310 Discovery-Sanctions); N.D.R.Ev. 507 (Trade Secrets), N.D.R.Ev. 510 (Waiver of
311 Privilege by Voluntary Disclosure), and N.D.R.Ev. 706 (Court-Appointed