RULE 26. GENERAL PROVISIONS GOVERNING DISCOVERY
(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods:
upon on oral examination or written questions;
(2) written interrogatories;
(3) production of documents or things or permission to enter
upon on land or other
property, for inspection and other purposes;
(4) physical and mental examinations; and
(5) requests for admission.
(b) Discovery Scope and Limits.
(1) In General.
(A) Scope. Unless otherwise limited by court 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 nonprivileged matter , not privileged, which that is relevant to the subject
matter involved in the pending action, whether it relates to the any party's 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 who
know of any discoverable matter. For good cause, the court may order the discovery of any
matter relevant to the subject matter involved in the action. It is not ground for objection that
the Relevant information sought will be inadmissible need not be admissible at the trial if
the information sought 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)(A). (2) (B) Limitations on Frequency and Extent. (A) (i) When Required. The On motion or on its own, the court must limit the frequency
or extent of use of the discovery methods set forth in subdivision (a) must be limited by the
court otherwise allowed by these rules if it determines that: (i) - discovery sought is unreasonably cumulative or duplicative, or is obtainable it can be
obtained 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 by discovery in the action; or (iii) - the burden or expense of the proposed discovery is unduly burdensome or expensive,
taking into account outweighs its likely benefit, considering the needs of the case, the
amount in controversy, limitations on the parties' resources, and the importance of the issues
at stake in the litigation action, and the importance of the discovery in resolving the issues.
The court may act upon its own initiative after reasonable notice or pursuant to a motion
under subdivision (c). (B) (ii) Specific Limitations on Electronically Stored Information. A party need not provide
discovery of electronically stored information from sources that the party identifies as not
reasonably accessible because of undue burden or cost. On motion to compel discovery or
for a protective order, the party from whom discovery is sought must show that the
information is not reasonably accessible because of undue burden or cost. If that showing
is made, the court may nonetheless order discovery from such sources if the requesting party
shows good cause, considering the limitations of subparagraph Rule 26(b)(2)(A). The court
may specify conditions for the discovery. (3) (2) Insurance Agreements. A party may obtain discovery of the existence and contents
of any insurance agreement under which any If a person carrying on an insurance business
may might be liable to satisfy part or all of a judgment which may be entered in the in an
action or to indemnify or reimburse for payments made to satisfy the judgment, a party may
obtain discovery of the existence and contents of the insurance agreement. Information
concerning Disclosure of the insurance agreement is not by reason of disclosure admissible
for its admission in evidence at trial. For purposes of this paragraph, an An application for
insurance shall may not be treated as part of an insurance agreement. (4) (3) Trial Preparation -:Materials.
(A) Documents and Tangible Objects.
Subject to the provisions of subdivision (b)( 5) a
party may obtain discovery of Ordinarily, a party may not discover documents and tangible
things otherwise discoverable under subdivision (b)(1) and that are prepared in anticipation
of litigation or for trial by or for another party or by or for that other party's its representative
(including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But,
subject to Rule 26(b)(5), these materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
only upon a showing that the party seeking discovery shows that it has substantial need
of for the materials in the preparation of the party's to prepare its case and that the party is
unable cannot, without undue hardship, to obtain the their substantial equivalent of the
materials by other means.
(B) Protection Against Disclosure.
In ordering If the court orders discovery of those
materials, when the required showing has been made, the court shall it must protect against
disclosure of the mental impressions, conclusions, opinions, or legal theories of an a party's
attorney or other representative of a party concerning the litigation.
(C) Previous Statement.
A Any party or other person may, on request and obtain without
the required showing, a obtain the person's own previous statement concerning about 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 and Rule 37(a)(4) apply applies to the award of expenses
incurred in relation to the motion. For purposes of this paragraph, a A previous statement
previously made is: (A)(i) a written statement that the person has signed or otherwise adopted or approved by
the person making it, ; or (B)(ii) a contemporaneous stenographic, mechanical, electrical, or other recording, or a
transcription thereof of it, which is a that recites substantially verbatim recital of an the
person's oral statement by the person making it and contemporaneously recorded. (5) (4) Trial preparation-Experts.
(A) Expert Who May Testify. Discovery of facts known and opinions held by experts,
otherwise discoverable under
the provisions of subdivision Rule 26(b)(1) of this rule and
acquired or developed in anticipation of litigation or for trial, may be obtained only as
follows: (A) (i) A a party may through interrogatories require any other party to identify each person
whom the other party expects to call as an expert witness at trial ,; to state 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 expected to testify and a summary of the grounds for each
A a party may depose each any person whom the other party expects to call who has
been identified as an expert witness whose opinions may be presented at trial unless , upon
motion, the court finds, on motion, that the deposition is unnecessary, overly burdensome,
or unfairly oppressive.
(B) Expert Employed Only for Trial Preparation.
A Ordinarily, a party may not, by
interrogatories or 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 to prepare for trial and who is not expected to be called as a witness at trial ,. But
a party may do so only:
(i) as provided in Rule 35(b); or
upon a on 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) Payment. Unless manifest injustice would result,
(i) the court shall must require that
the party seeking discovery:
(i) pay the expert a reasonable fee for time spent in responding to discovery under
subdivisions Rule 26(b)(4)(A) (ii) and (b)(4) or (B) of this rule; and
with respect to for discovery obtained under subdivision (b)(4)(A) (ii) of this rule the
court may require, and with respect to for discovery obtained under subdivision (b)(4)(B)
of this rule the court shall must require , the party seeking discovery to pay the other party
a fair portion of the fees and expenses it reasonably incurred by the latter party in obtaining
the expert's facts and opinions from the expert. (6) (5) Claims of Claiming Privilege or Protection of Protecting Trial Preparation Materials.
(A) Information Withheld. When a party withholds information otherwise discoverable
under these rules by claiming that it the information is privileged or subject to protection as
trial-preparation material, the party shall must:
(i) expressly make the claim
shall describe the nature of the documents, communications, or tangible things not
produced or disclosed, and do so in a matter that, without revealing information itself
privileged or protected, will enable other parties to assess the applicability of the privilege
or protection claim.
(B) Information Produced. If information is produced in discovery that is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a receiving party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.
(c) Protective Orders.
(1) In General.
Upon motion by a A party or by the any person from whom discovery is
sought , and for good cause shown, the court in which may move for a protective order in the
court where the action is pending, or alternatively, as an alternative on matters relating to
a deposition, in the court in the district where the deposition is to will be taken. The court
may, for good cause shown, make any issue an 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) (A) that forbidding the discovery not be had; (2) (B) that the discovery may be had only on specified specifying terms and conditions,
including a designation of the time or place, for the discovery; (3) (C) that the prescribing a discovery may be had only by a method of discovery other
than that the one selected by the party seeking discovery; (4) (D) that forbidding inquiry into certain matters not be inquired into, or that limiting the
scope of the discovery be limited to certain matters; (5) (E) that discovery be conducted with no one designating the persons who may be
present except persons designated by the court while the discovery is conducted; (6) (F) requiring that a deposition after being be sealed be and opened only by on court
order of the court; (7) (G) requiring that a trade secret or other confidential research, development, or
commercial information not be disclosed or be disclosed revealed or be revealed only in a
designated specified way; or and (8) (H) requiring that the parties simultaneously file specified documents or information
enclosed in sealed envelopes to be opened as directed by the court directs.
(2) Ordering Discovery. If
the a motion for a protective order is wholly or partially denied
in whole or in part, the court may, on such terms and conditions as are just terms, order that
any party or person provide or permit discovery.
(3) Awarding Expenses.
The provisions of Rule 37(a)(4) apply applies to the award of
expenses incurred in relation to the motion.
(d) Sequence and Timing of Discovery. Unless, on motion, the court
upon motion, for the
orders otherwise for the parties' and witnesses' 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 by one party , whether by deposition or
otherwise, shall not operate does not require any other party to delay any other party's its
Supplementation of Supplementing Responses.
(1) In General. A party who has responded to
a request for discovery with a response that
was complete when made is under no duty to supplement the response to include
information thereafter acquired, except as follows an interrogatory, request for production,
or request for admission, must supplement or correct its response: (1) A party is under a duty seasonably to supplement the response with respect to any
question directly addressed to
(A) in a timely manner if the party learns that in some material respect the response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the parties during the discovery process or in writing; or
(B) as ordered by the court.
(2) Witnesses. A party has a duty to timely supplement a response about:
(A) the identity and location of persons having knowledge of discoverable matters, and
(B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the person's testimony.
(2) A party is under a duty seasonably to amend a previous response if the party obtains
information upon the basis of which (A) the party knows that the response was incorrect when made, or (B) the party knows that the response though correct when made is no longer true and the
circumstances are such that a failure to amend the response is in substance a knowing
concealment. (3) A duty to supplement responses may be imposed by order of the court, agreement of
the parties, or at any time before trial through new requests for supplementation of previous
(f) Discovery Conference.
(1) Conference Timing. At any time after an action has been filed, the court may
order the parties' attorneys for the parties to appear before it for a discovery conference on
the subject of discovery.
(2) Motion for Conference.
The On motion, the court shall do so upon motion by the
attorney for any party must order a discovery conference if the motion includes: (1)(A) A a statement of the issues as they then appear; (2)(B) A a proposed discovery plan and schedule of discovery; (3)(C) Any proposed limitations proposed to be placed on discovery; (4)(D) Any other proposed discovery orders with respect to discovery; and (5)(E) A a statement showing that the attorney making the motion movant has made a
reasonable effort to reach agreement with opposing attorneys on the matters set forth in the
(3) Discovery Plan.
Each If a party proposes making a discovery plan, each party and each
party's attorney are under has a duty to participate in good faith in the framing of a discovery
the plan if a plan is proposed by the attorney for any party. Notice of the motion must be
served on all parties. Objections or additions to matters set forth in the motion must be
served not later than ten days after service of the motion.
(4) Discovery Order. Following the discovery conference, the court
shall must enter an
(A) identifying the discovery issues
for discovery purposes,;
(B) establishing a discovery plan and schedule
limitations on discovery limits, if any ,; and
such other matters, including the allocation of expenses, as are necessary
for the proper management of discovery in the action. An A discovery order may be altered or amended whenever if justice so requires.
(5) Discovery and Scheduling Conference. Subject to the right of a party who properly
moves for a discovery conference to a prompt convening of the conference, the court may
combine the discovery conference with a pretrial conference
authorized by under Rule 16.
of Discovery Requests, Responses, and Objections.
(1) Signature Required; Effect of Signature. Every discovery request,
for discovery or
response, or objection thereto made by a party represented by an attorney must be signed
by at least one attorney of record in the attorney's individual name, or by the party
personally, if self-represented, and contain the attorney's state the signer's address, e-mail
address, telephone number, and State Board of Law Examiners identification number, if
applicable. A party who is not represented by an attorney shall sign the request, response,
or objection and state the party's address. The signature of By signing, the attorney or party
constitutes a certification certifies that the signer has read the request, response, or objection,
and that to the best of the signer's knowledge, information, and belief formed after a
reasonable inquiry it is: (i) (A) consistent with these rules and warranted by existing law or by a good faith
argument for the extension, modification, or reversal of extending, modifying or reversing
existing law; (ii) (B) not interposed for any improper purpose, such as to harass, or to cause unnecessary
delay or needless needlessly increase in the cost of litigation; and (iii) (C) not neither unreasonable or nor unduly burdensome or expensive, given
considering the needs of the case, the prior discovery already had in the case, the amount
in controversy, and the importance of the issues at stake in the litigation.
(2) Failure to Sign.
If a Other parties have no duty to act on an unsigned request, response,
or objection is not until it is signed, and the court, on motion of a party shall or on its own,
motion may order the instrument to be stricken must strike it unless it is signeda signature
is promptly supplied after the omission is called to the attorney's or party's attention of the
party making the request, response, or objection and the party is not obligated to take any
action with respect to it until it is signed.
(3) Sanction for Improper Certification. If a certification
is made in violation of the violates
this rule, without substantial justification, the court, on motion of a party or its own motion,
shall must impose upon the person who made the certification, the party on whose behalf
the request, response, or objection is made, or both, an appropriate sanction on the signer,
the party on whose behalf the signer was acting, or both. , which The sanction may include
an order to pay the amount of the reasonable expenses, including attorney's fees, incurred
because of caused by the violation , including a reasonable attorney's fee.
Rule 26 was amended, effective July 1, 1981; March 1, 1986; March 1, 1990; March 1, 1996; March 1, 2008; ______________.
Before the 1993 federal amendment, Rule 26 was almost identical to Rule 26, is derived
from Fed.R.Civ.P. 26.
As amended, effective March 1, 1996, a party deposing another party's expert witness under subdivision (b)(4)(A)(ii) must pay the expert a reasonable fee under subdivision (b)(4)(C), even though a court order has not been obtained authorizing the deposition or commanding payment of expert witness fees.
Rule 26 was amended, effective March 1, 2008, to implement changes related to discovery of electronically stored information. The changes reflect the 2006 amendments to Fed.R.Civ.P. 26. Subdivision (b) was amended to incorporate a new subparagraph (b)(2)(B) on limitations to discovery of electronic information. A new paragraph (b)(6) was also added to address claims of privilege or protection of trial preparation materials.
Rule 26 was amended, effective _______________, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Sources: Joint Procedure Committee Minutes of January 29-30, 2009, page 6; September 25, 2008, pages 21-22; January 25, 2007, pages 9-10; September 28-29, 2006, pages 18-20; January 26-27, 1995, pages 10-12; September 29-30, 1994, pages 21-22; April 20, 1989, page 2; December 3, 1987, page 11; April 26, 1984, page 28; January 20, 1984, pages 23-31; December 11-12, 1980, page 2; October 30-31, 1980, pages 9-10; September 20-21, 1979, page 19; Fed.R.Civ.P. 26.
Statutes Affected: Superseded: N.D.R.C. 1943 &S&&S& 31-0203, 31-0204, 31-0206, 31-0501, 31-0502,
31-0511, 31-0515, 31-0519, 31-0710.
Cross Reference: N.D.R.Civ.P. 16 (Pretrial Procedure - Formulating Issues), N.D.R.Civ.P. 28 (Persons Before Whom Depositions May Be Taken), N.D.R.Civ.P. 29 (Stipulations Regarding Discovery Procedure), N.D.R.Civ.P. 30 (Depositions Upon Oral Examination), N.D.R.Civ.P. 30.1 (Uniform Audio-Visual Deposition Rule), N.D.R.Civ.P. 31 (Depositions of Witnesses Upon Written Questions), 33 (Interrogatories to Parties), N.D.R.Civ.P. 34 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes), N.D.R.Civ.P. 35 (Physical and Mental Examination of Persons), 36 (Requests for Admission), N.D.R.Civ.P. 37 (Failure to Make Discovery - Sanctions), N.D.R.Ev. 507 (Trade Secrets), N.D.R.Ev. 510 (Waiver of Privilege by Voluntary Disclosure), and N.D.R.Ev. 706 (Court-Appointed Experts).