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. For the
20 purposes of the discovery rules, the phrase "electronically stored information"
21 includes reasonably accessible metadata that will enable the discovering party to
22 have the ability to access such information as the date sent, date received, author,
23 and recipients. The phrase does not include other metadata unless the parties agree
24 otherwise or the court orders otherwise upon motion of a party and a showing of
25 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. A party need
41 not provide discovery of electronically stored information from sources that the
42 party identifies as not reasonably accessible because of undue burden or cost. On
43 motion to compel discovery or for a protective order, the party from whom
44 discovery is sought must show that the information is not reasonably accessible
45 because of undue burden or cost. If that showing is made, the court may
46 nonetheless order discovery from such sources if the requesting party shows good
47 cause, considering the limitations of Rule 26(b)(1)(B). The court may specify
48 conditions for the discovery.
49 (2) Insurance agreements. If a person carrying on an insurance business
50 might be liable to satisfy part or all of a judgment in an action or to indemnify or
51 reimburse for payments made to satisfy the judgment, a party may obtain discovery
52 of the existence and contents of the insurance agreement. Disclosure of the
53 insurance agreement is not reason for its admission in evidence at trial. An
54 application for insurance may not be treated as part of an insurance agreement.
55 (3) Trial preparation - Materials.
56 (A) Documents and tangible objects. Ordinarily, a party may not discover
57 documents and tangible things that are prepared in anticipation of litigation or for
58 trial by or for another party or its representative (including the other party's
59 attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule
60 26(b)(5), these materials may be discovered if:
61 (i) they are otherwise discoverable under Rule 26(b)(1); and
62 (ii) the party shows that it has substantial need of the materials to prepare its
63 case and cannot, without undue hardship, obtain their substantial equivalent by
64 other means.
65 (B) Protection against disclosure. If the court orders discovery of those
66 materials, it must protect against disclosure of the mental impressions, conclusions,
67 opinions, or legal theories of a party's attorney or other representative concerning
68 the litigation.
69 (C) Previous statement. Any party or other person may, on request and
70 without the required showing, obtain the person's own previous statement about
71 the action or its subject matter. If the request is refused, the person may move for a
72 court order and Rule 37(a)(5) applies to the award of expenses. A previous
73 statement is:
74 (i) a written statement that the person has signed or otherwise adopted or
75 approved; or
76 (ii) a contemporaneous stenographic, mechanical, electrical, or other
77 recording, or a transcription of it, that recites substantially verbatim the person's
78 oral statement.
79 (4) Trial preparation - Experts.
80 (A) Expert who may testify. Discovery of facts known and opinions held by
81 experts, otherwise discoverable under Rule 26(b)(1) and acquired or developed in
82 anticipation of litigation or for trial, may be obtained only as follows:
83 (i) a party may through interrogatories require any other party to identify
84 each person whom the other party expects to call as an expert witness at trial; to
86 - the subject matter on which the expert is expected to testify;
87 - and to state the substance of the facts and opinions to which the expert is
88 expected to testify;
89 - and a summary of the grounds for each opinion;
90 (ii) a party may depose any person who has been identified as an expert
91 witness whose opinions may be presented at trial unless the court finds, on motion,
92 that the deposition is unnecessary, overly burdensome, or unfairly oppressive.
93 (B) Expert employed only for trial preparation. Ordinarily, a party may not,
94 by interrogatories or deposition, discover facts known or opinions held by an
95 expert who has been retained or specially employed by another party in
96 anticipation of litigation or to prepare for trial and who is not expected to be called
97 as a witness at trial. But a party may do so only:
98 (i) as provided in Rule 35(b); or
99 (ii) on showing exceptional circumstances under which it is impracticable
100 for the party to obtain facts or opinions on the same subject by other means.
101 (C) Payment. Unless manifest injustice would result, the court must require
102 that the party seeking discovery:
103 (i) pay the expert a reasonable fee for time spent in responding to discovery
104 under Rule 26(b)(4)(A) or (B); and
105 (ii) for discovery under Rule 26(b)(4)(A) the court may require, and for
106 discovery under Rule 26(b)(4)(B) the court must require the party seeking
107 discovery to pay the other party a fair portion of the fees and expenses it
108 reasonably incurred in obtaining the expert's facts and opinions.
109 (5) Claiming privilege or protecting trial preparation materials.
110 (A) Information withheld. When a party withholds information otherwise
111 discoverable by claiming that the information is privileged or subject to protection
112 as trial-preparation material, the party must:
113 (i) expressly make the claim; and
114 (ii) describe the nature of the documents, communications, or tangible
115 things not produced or disclosed, and do so in a matter that, without revealing
116 information itself privileged or protected, will enable other parties to assess the
118 (B) Information produced. If information is produced in discovery that is
119 subject to a claim of privilege or of protection as trial-preparation material, the
120 party making the claim may notify any party that received the information of the
121 claim and the basis for it. After being notified, a receiving party must promptly
122 return, sequester, or destroy the specified information and any copies it has and
123 may not use or disclose the information until the claim is resolved. A receiving
124 party may promptly present the information to the court under seal for
125 determination of the claim. If the receiving party disclosed the information before
126 being notified, it must take reasonable steps to retrieve it. The producing party
127 must preserve the information until the claim is resolved.
128 (c) Protective orders.
129 (1) In general. A party or any person from whom discovery is sought may
130 move for a protective order in the court where the action is pending, or as an
131 alternative on matters relating to a deposition, in the court in the district where the
132 deposition will be taken. The court may, for good cause shown, issue an order to
133 protect a party or person from annoyance, embarrassment, oppression, or undue
134 burden or expense, including one or more of the following:
135 (A) forbidding the discovery;
136 (B) specifying terms and conditions, including time or place, for the
138 (C) prescribing a discovery other than the one selected by the party seeking
140 (D) forbidding inquiry into certain matters, or limiting the scope of
141 discovery to certain matters;
142 (E) designating the persons who may be present while the discovery is
144 (F) requiring that a deposition be sealed and opened only on court order;
145 (G) requiring that a trade secret or other confidential research, development,
146 or commercial information not be revealed or be revealed only in a specified way;
148 (H) requiring that the parties simultaneously file specified sealed documents
149 or information
enclosed in sealed envelopes to be opened as the
150 (2) Ordering discovery. If a motion for a protective order is wholly or
151 partially denied, the court may, on just terms, order that any party or person
152 provide or permit discovery.
153 (3) Awarding expenses. Rule 37(a)(5) applies to the award of expenses.
154 (d) Sequence and timing of discovery. Unless, on motion, the court orders
155 otherwise for the parties' and witnesses' convenience and in the interests of justice,
156 methods of discovery may be used in any sequence and discovery by one party
157 does not require any other party to delay its discovery.
158 (e) Supplementing responses.
159 (1) In general. A party who has responded to an interrogatory, request for
160 production, or request for admission, must supplement or correct its response:
161 (A) in a timely manner if the party learns that in some material respect the
162 response is incomplete or incorrect, and if the additional or corrective information
163 has not otherwise been made known to the parties during the discovery process or
164 in writing; or
165 (B) as ordered by the court.
166 (2) Witnesses. A party has a duty to timely supplement a response about:
167 (A) the identity and location of persons having knowledge of discoverable
168 matters, and
169 (B) the identity of each person expected to be called as an expert witness at
170 trial, the subject matter on which the person is expected to testify, and the
171 substance of the person's testimony.
172 (f) Discovery Meeting, Discovery Conference, Discovery Plan.
173 (1) Discovery Meeting. No earlier than 40 days after the complaint is filed
174 in an action, any party's attorney or a self-represented party may request in writing
175 a meeting on the subject of discovery, including the discovery of electronically
176 stored information. If such a request is made, the parties must meet within 21 days,
177 unless agreed otherwise by the parties or their attorneys or another time for the
178 meeting is ordered by the court. Even if the parties or their attorneys do not seek to
179 have a discovery meeting, at any time after the complaint is filed the court may
180 direct the parties or their attorneys to appear before it for a discovery conference.
181 (2) Matters for Consideration. During a discovery meeting held under Rule
182 26(f)(1), the attorneys and any self-represented parties must:
183 (A) consider the nature and basis of the parties' claims and defenses and the
184 possibilities for promptly settling or resolving the case, and
185 (B) discuss the preparation of a discovery plan as set forth in Rule 26(f)(3).
186 (3) Conduct of Meeting. Attorneys for the parties, and any self-represented
187 parties, that have appeared in the case are jointly responsible for arranging the
188 meeting, for being prepared to discuss a discovery plan, and for attempting in good
189 faith to agree on a discovery plan. The meeting may be held by telephone, by
190 videoconference, or in person, or by a combination of methods, unless the court,
191 on motion, orders the attorneys and the self-represented parties to attend in person.
192 (4) Discovery Plan or Report.
193 (A) In General. If a discovery plan is agreed on, it must be submitted to the
194 court within 14 days after the meeting, and the parties may request a conference
195 with the court regarding the plan. If the parties do not agree on a discovery plan,
196 they must submit to the court within 14 days after the meeting a joint report
197 containing those parts of a discovery plan on which they agree and the position of
198 each of the parties on the parts upon which they disagree. Unless the parties agree
199 otherwise, the attorney for the first plaintiff listed on the complaint is responsible
200 for submitting the discovery plan or joint report.
201 (B) Discovery Plan Contents. A discovery plan must contain the following:
202 (i) a statement of the issues as they then appear;
203 (ii) a proposed plan and schedule of discovery, including the discovery of
204 electronically stored information;
205 (iii) with respect to electronically stored information, and if appropriate
206 under the circumstances of the case, a reference to the preservation of such
207 information, the media form, format, or procedures by which such information will
208 be produced, the allocation of the costs of preservation, production, and, if
209 necessary, restoration, of such information, the method for asserting or preserving
210 claims of privilege or of protection of the information as trial-preparation materials
211 if different from that provided in Rule 26 (b)(5), the method for asserting or
212 preserving confidentiality and proprietary status, and any other matters addressed
213 by the parties;
214 (iv) any limitations proposed to be placed on discovery, including, if
215 appropriate under the circumstances of the case, that discovery be conducted in
216 phases or be limited to or focused on particular issues;
217 (v) when discovery should be completed; and
218 (vi) if appropriate under the circumstances of the case, any limitations or
219 conditions under Rule 26 (c) regarding protective orders.
220 (5) Discovery Conference. If the parties are unable to agree to a discovery
221 plan at a meeting held under Rule 26(f)(1), they must, on motion of any party,
222 appear before the court for a discovery conference at which the court must order
223 the entry of a discovery plan after consideration of the report required to be
224 submitted under Rule 26(f)(4)(A) and the position of the parties. The order may
225 address other matters, including the allocation of discovery costs, as are necessary
226 for the proper management of discovery in the action. An order may be altered or
227 amended as justice may require. The court may combine the discovery conference
228 with a pretrial conference authorized by Rule 16.
229 (g) Signing discovery requests, responses, and objections.
230 (1) Signature required; Effect of signature. Every discovery request,
231 response, or objection must be signed by at least one attorney of record in the
232 attorney's individual name, or by the party personally, if self-represented, state the
233 signer's address, electronic mail address for electronic service, telephone number,
234 and State Board of Law Examiners identification number, if applicable. By
235 signing, the attorney or party certifies that the signer has read the request,
236 response, or objection, and that to the best of the signer's knowledge, information,
237 and belief formed after a reasonable inquiry it is:
238 (A) consistent with these rules and warranted by existing law or by a good
239 faith argument for extending, modifying or reversing existing law;
240 (B) not interposed for any improper purpose, such as to harass, cause
241 unnecessary delay or needlessly increase the cost of litigation; and
242 (C) neither unreasonable nor unduly burdensome or expensive, considering
243 the needs of the case, prior discovery in the case, the amount in controversy, and
244 the importance of the issues at stake in the litigation.
245 (2) Failure to sign. Other parties have no duty to act on an unsigned request,
246 response, or objection until it is signed, and the court, on motion or on its own,
247 must strike it unless a signature is promptly supplied after the omission is called to
248 the attorney's or party's attention.
249 (3) Sanction for improper certification. If a certification violates this rule,
250 without substantial justification, the court, on motion or its own, must impose an
251 appropriate sanction on the signer, the party on whose behalf the signer was acting,
252 or both. The sanction may include an order to pay the reasonable expenses,
253 including attorney's fees, caused by the violation.
254 EXPLANATORY NOTE
255 Rule 26 was amended, effective July 1, 1981; March 1, 1986; March 1,
256 1990; March 1, 1996; March 1, 2008; March 1, 2011; March 1,
258 Rule 26 is derived from Fed.R.Civ.P. 26.
259 As amended, effective March 1, 1996, a party deposing another party's
260 expert witness under subdivision (b)(4)(A)(ii) must pay the expert a reasonable fee
261 under subdivision (b)(4)(C), even though a court order has not been obtained
262 authorizing the deposition or commanding payment of expert witness fees.
263 Rule 26 was amended, effective March 1, 2008, to implement changes
264 related to discovery of electronically stored information. The changes reflect the
265 2006 amendments to Fed.R.Civ.P. 26. Subdivision (b) was amended to incorporate
266 a new subparagraph (b)(2)(B) on limitations to discovery of electronic information.
267 A new paragraph (b)(6) was also added to address claims of privilege or protection
268 of trial preparation materials.
269 Rule 26 was amended, effective March 1, 2011, in response to the
270 December 1, 2007, revision of the Federal Rules of Civil Procedure. The language
271 and organization of the rule were changed to make the rule more easily understood
272 and to make style and terminology consistent throughout the rules.
273 Subparagraph (b)(1)(A) was amended, effective March 1, 2013, to include a
274 definition of "electronically stored information" and to designate what types of
275 metadata may be discovered.
276 Subparagraph (c)(1)(H) was amended, effective______________, to
277 remove a reference to filing in a paper sealed envelope. Items are filed with the
278 court electronically, and may be designated as sealed when submitted.
279 Subdivision (f) was amended, effective March 1, 2013, to provide a
280 procedure for discovery meetings and conferences and for the formulation of
281 discovery plans and reports, with an emphasis on discussing and planning for the
282 discovery of electronic information.
283 Paragraph (g)(1) was amended, effective_________________, to specify
284 that the attorney's electronic mail address for electronic service must be included
285 with the signature.
286 Sources: Joint Procedure Committee Minutes of ____________________;
287 January 26-27, 2012, page 17-19; January 29-30, 2009, page 6; September 25,
288 2008, pages 21-22; January 25, 2007, pages 9-10; September 28-29, 2006, pages
289 18-20; January 26-27, 1995, pages 10-12; September 29-30, 1994, pages 21-22;
290 April 20, 1989, page 2; December 3, 1987, page 11; April 26, 1984, page 28;
291 January 20, 1984, pages 23-31; December 11-12, 1980, page 2; October 30-31,
292 1980, pages 9-10; September 20-21, 1979, page 19; Fed.R.Civ.P. 26.
293 Cross Reference: N.D.R.Civ.P. 16 (Pretrial Procedure -- Formulating
294 Issues), N.D.R.Civ.P. 28 (Persons Before Whom Depositions May Be Taken),
295 N.D.R.Civ.P. 29 (Stipulations Regarding Discovery Procedure), N.D.R.Civ.P. 30
296 (Depositions Upon Oral Examination), N.D.R.Civ.P. 30.1 (Uniform Audio-Visual
297 Deposition Rule), N.D.R.Civ.P. 31 (Depositions of Witnesses Upon Written
298 Questions), 33 (Interrogatories to Parties), N.D.R.Civ.P. 34 (Production of
299 Documents and Things and Entry Upon Land for Inspection and Other Purposes),
300 N.D.R.Civ.P. 35 (Physical and Mental Examination of Persons), 36 (Requests for
301 Admission), N.D.R.Civ.P. 37 (Failure to Make Discovery -- Sanctions), N.D.R.Ev.
302 507 (Trade Secrets), N.D.R.Ev. 510 (Waiver of Privilege by Voluntary
303 Disclosure), and N.D.R.Ev. 706 (Court-Appointed Experts).