Comments on the proposed amendments to this rule may be directed to Staff Attorney Mike Hagburg - .
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. All
20 discovery is subject to the limitations imposed by Rule 26(b)(1)(B)(i).
21 (B) Limitations on Frequency and Extent.
22 (i) When Required. On motion or on its own, the court must limit the
23 frequency or extent of discovery otherwise allowed by these rules if it determines
25 discovery sought is unreasonably cumulative or duplicative, or it can be
26 obtained from some other source that is more convenient, less burdensome, or less
28 the party seeking discovery has had ample opportunity to obtain the
29 information by discovery in the action; or
30 the burden or expense of the proposed discovery outweighs its likely
31 benefit, considering the needs of the case, the amount in controversy, the parties'
32 resources, the importance of the issues at stake in the action, and the importance of
33 the discovery in resolving the issues.
34 (ii) Specific Limitations on Electronically Stored Information. For the
35 purposes of the discovery rules, the phrase "electronically stored information"
36 includes reasonably accessible metadata that will enable the discovering party to
37 have the ability to access such information as the date sent, date received, author,
38 and recipients. The phrase does not include other metadata unless the parties agree
39 otherwise or the court orders otherwise upon motion of a party and a showing of
40 good cause for the production of certain metadata. A party need not provide
41 discovery of electronically stored information from sources that the party identifies
42 as not reasonably accessible because of undue burden or cost. On motion to
43 compel discovery or for a protective order, the party from whom discovery is
44 sought must show that the information is not reasonably accessible because of
45 undue burden or cost. If that showing is made, the court may nonetheless order
46 discovery from such sources if the requesting party shows good cause, considering
47 the limitations of Rule 26(b)(1)(B). The court may specify conditions for the
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.
Trial Preparation Experts Disclosure of Expert
(A) Expert Who May Testify. Discovery of facts known and opinions
by experts, otherwise discoverable under Rule 26(b)(1) and acquired or
in anticipation of litigation or for trial, may be obtained only as
(i) a party may through interrogatories require any other party to
each person whom the other party expects to call as an expert witness at
the subject matter on which the expert is expected to
and to state the substance of the facts and opinions to which the
expected to testify; and
and a summary of the grounds for each opinion;
(ii) a party may depose any person who has been identified as an
witness whose opinions may be presented at trial unless the court finds,
that the deposition is unnecessary, overly burdensome, or unfairly
93 (A) In General.
In addition to the disclosures required by Rule
26(a)(1), a A
94 party must disclose to the other parties the identity of any witness it may use at trial
95 to present evidence under N.D.R.Ev. 702, 703, or 705.
96 (B) Witnesses Who Must Provide a Written Report. Unless otherwise
97 stipulated or ordered by the court, this disclosure must be accompanied by a
98 written report--prepared and signed by the witness--if the witness is one retained
99 or specially employed to provide expert testimony in the case or one whose duties
100 as the party's employee regularly involve giving expert testimony. The report must
102 (i) a complete statement of all opinions the witness will express and the
103 basis and reasons for them;
104 (ii) the facts or data considered by the witness in forming them;
105 (iii) any exhibits that will be used to summarize or support them;
106 (iv) the witness's qualifications, including a list of all publications authored
107 in the previous 10 years;
108 (v) a list of all other cases in which, during the previous 4 years, the witness
109 testified as an expert at trial or by deposition; and
110 (vi) a statement of the compensation to be paid for the study and testimony
111 in the case.
112 (C) Witnesses Who Do Not Provide a Written Report. Unless otherwise
113 stipulated or ordered by the court, if the witness is not required to provide a written
114 report, this disclosure must state:
115 (i) the subject matter on which the witness is expected to present evidence
116 under N.D.R.Ev. 702, 703, or 705; and
117 (ii) a summary of the facts and opinions to which the witness is expected to
119 (D) Time to Disclose Expert Testimony. A party must make these
120 disclosures at the times and in the sequence that the court orders. Absent a
121 stipulation or a court order, the disclosures must be made:
122 (i) at least 90 days before the date set for trial or for the case to be ready for
123 trial; or
124 (ii) if the evidence is intended solely to contradict or rebut evidence on the
125 same subject matter identified by another party under Rule 26(b)(4)(B) or (C),
126 within 30 days after the other party's disclosure.
127 (E) Supplementing the Disclosure. The parties must supplement these
128 disclosures when required under Rule 26(e).
129 (F) Deposition of an Expert Who May Testify. A party may depose any
130 person who has been identified as an expert whose opinions may be presented at
131 trial. If Rule 26(b)(4)(B) requires a report from the expert, the deposition may be
132 conducted only after the report is provided.
133 (G) Trial-Preparation Protection for Draft Reports or Disclosures. Rules
134 26(b)(4)(G) and (H) protect drafts of any report required under Rule 26(b)(4)(B),
135 regardless of the form in which the draft is recorded.
136 (H) Trial-Preparation Protection for Communications Between a Party's
137 Attorney and Expert Witnesses. Rules 26(b)(4)(G) and (H) protect
138 communications between the party's attorney and any witness required to provide a
139 report under 26(b)(4)(B), regardless of the form of the communications, except to
140 the extent that the communications:
141 (i) relate to compensation for the expert's study or testimony;
142 (ii) identify facts or data that the party's attorney provided and that the
143 expert considered in forming the opinions to be expressed; or
144 (iii) identify assumptions that the party's attorney provided and that the
145 expert relied on in forming the opinions to be expressed.
146 (I) Expert Employed Only for Trial Preparation. Ordinarily, a party may not,
147 by interrogatories or deposition, discover facts known or opinions held by an
148 expert who has been retained or specially employed by another party in
149 anticipation of litigation or to prepare for trial and who is not expected to be called
150 as a witness at trial. But a party may do so only:
151 (i) as provided in Rule 35(b); or
152 (ii) on showing exceptional circumstances under which it is impracticable
153 for the party to obtain facts or opinions on the same subject by other means.
(C) (J) Payment. Unless manifest injustice would result,
the court must
155 require that the party seeking discovery:
156 (i) pay the expert a reasonable fee for time spent in responding to discovery
Rule 26(b)(4)(A) or (B); and
158 (ii) for discovery
under Rule 26(b)(4)(A) of an expert who
must provide a
159 written report the court may require, and for discovery
160 an expert who does not provide a written report the court must require the party
161 seeking discovery to pay the other party a fair portion of the fees and expenses it
162 reasonably incurred in obtaining the expert's facts and opinions.
163 (5) Claiming Privilege or Protecting Trial Preparation Materials.
164 (A) Information Withheld. When a party withholds information otherwise
165 discoverable by claiming that the information is privileged or subject to protection
166 as trial-preparation material, the party must:
167 (i) expressly make the claim; and
168 (ii) describe the nature of the documents, communications, or tangible
169 things not produced or disclosed, and do so in a matter that, without revealing
170 information itself privileged or protected, will enable other parties to assess the
172 (B) Information Produced. If information is produced in discovery that is
173 subject to a claim of privilege or of protection as trial-preparation material, the
174 party making the claim may notify any party that received the information of the
175 claim and the basis for it. After being notified, a receiving party must promptly
176 return, sequester, or destroy the specified information and any copies it has and
177 may not use or disclose the information until the claim is resolved. A receiving
178 party may promptly present the information to the court under seal for
179 determination of the claim. If the receiving party disclosed the information before
180 being notified, it must take reasonable steps to retrieve it. The producing party
181 must preserve the information until the claim is resolved.
182 (c) Protective Orders.
183 (1) In General. A party or any person from whom discovery is sought may
184 move for a protective order in the court where the action is pending, or as an
185 alternative on matters relating to a deposition, in the court in the district where the
186 deposition will be taken. The court may, for good cause shown, issue an order to
187 protect a party or person from annoyance, embarrassment, oppression, or undue
188 burden or expense, including one or more of the following:
189 (A) forbidding the discovery;
190 (B) specifying terms and conditions, including time or place for the
192 (C) prescribing a discovery other than the one selected by the party seeking
194 (D) forbidding inquiry into certain matters, or limiting the scope of
195 discovery to certain matters;
196 (E) designating the persons who may be present while the discovery is
198 (F) requiring that a deposition be sealed and opened only on court order;
199 (G) requiring that a trade secret or other confidential research, development,
200 or commercial information not be revealed or be revealed only in a specified way;
202 (H) requiring that the parties simultaneously file specified sealed documents
203 or information to be opened as the court directs.
204 (2) Ordering Discovery. If a motion for a protective order is wholly or
205 partially denied, the court may, on just terms, order that any party or person
206 provide or permit discovery.
207 (3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses.
208 (d) Sequence and Timing of Discovery. Unless, on motion, the court orders
209 otherwise for the parties' and witnesses' convenience and in the interests of justice,
210 methods of discovery may be used in any sequence and discovery by one party
211 does not require any other party to delay its discovery.
212 (e) Supplementing Responses.
213 (1) In General. A party who has made a disclosure under Rule 26(b)(4)or
214 who has responded to an interrogatory, request for production, or request for
215 admissionmust supplement or correct its disclosure or response:
216 (A) in a timely manner if the party learns that in some material respect the
217 response is incomplete or incorrect, and if the additional or corrective information
218 has not otherwise been made known to the parties during the discovery process or
219 in writing; or
220 (B) as ordered by the court.
221 (2) Witnesses. A party has a duty to timely supplement a response about:
222 (A) the identity and location of persons having knowledge of discoverable
223 matters, and
224 (B) the identity of each person expected to be called as an expert witness at
225 trial, the subject matter on which the person is expected to testify, and the
226 substance of the person's testimony.
227 (f) Discovery Meeting, Discovery Conference, Discovery Plan.
228 (1) Discovery Meeting. No earlier than 40 days after the complaint is filed
229 in an action, any party's attorney or a self-represented party may request in writing
230 a meeting on the subject of discovery, including the discovery of electronically
231 stored information. If such a request is made, the parties must meet within 21 days,
232 unless agreed otherwise by the parties or their attorneys or another time for the
233 meeting is ordered by the court. Even if the parties or their attorneys do not seek to
234 have a discovery meeting, at any time after the complaint is filed the court may
235 direct the parties or their attorneys to appear before it for a discovery conference.
236 (2) Matters for Consideration. During a discovery meeting held under Rule
237 26(f)(1), the attorneys and any self-represented parties must:
238 (A) consider the nature and basis of the parties' claims and defenses and the
239 possibilities for promptly settling or resolving the case, and
240 (B) discuss the preparation of a discovery plan as set forth in Rule 26 (f)(3).
241 (3) Conduct of Meeting. Attorneys for the parties, and any self-represented
242 parties, that have appeared in the case are jointly responsible for arranging the
243 meeting, for being prepared to discuss a discovery plan, and for attempting in good
244 faith to agree on a discovery plan. The meeting may be held by telephone, by
245 videoconference, or in person, or by a combination of methods, unless the court,
246 on motion, orders the attorneys and the self-represented parties to attend in person.
247 (4) Discovery Plan or Report.
248 (A) In General. If a discovery plan is agreed on, it must be submitted to the
249 court within 14 days after the meeting, and the parties may request a conference
250 with the court regarding the plan. If the parties do not agree on a discovery plan,
251 they must submit to the court within 14 days after the meeting a joint report
252 containing those parts of a discovery plan on which they agree and the position of
253 each of the parties on the parts upon which they disagree. Unless the parties agree
254 otherwise, the attorney for the first plaintiff listed on the complaint is responsible
255 for submitting the discovery plan or joint report.
256 (B) Discovery Plan Contents. A discovery plan must contain the following:
257 (i) a statement of the issues as they then appear;
258 (ii) a proposed plan and schedule of discovery, including the discovery of
259 electronically stored information;
260 (iii) with respect to electronically stored information, and if appropriate
261 under the circumstances of the case, a reference to the preservation of such
262 information, the media form, format, or procedures by which such information will
263 be produced, the allocation of the costs of preservation, production, and, if
264 necessary, restoration, of such information, the method for asserting or preserving
265 claims of privilege or of protection of the information as trial-preparation materials
266 if different from that provided in Rule 26 (b)(5), the method for asserting or
267 preserving confidentiality and proprietary status, and any other matters addressed
268 by the parties;
269 (iv) any limitations proposed to be placed on discovery, including, if
270 appropriate under the circumstances of the case, that discovery be conducted in
271 phases or be limited to or focused on particular issues;
272 (v) when discovery should be completed; and
273 (vi) if appropriate under the circumstances of the case, any limitations or
274 conditions under Rule 26 (c) regarding protective orders.
275 (5) Discovery Conference. If the parties are unable to agree to a discovery
276 plan at a meeting held under Rule 26 (f)(1), they must, on motion of any party,
277 appear before the court for a discovery conference at which the court must order
278 the entry of a discovery plan after consideration of the report required to be
279 submitted under Rule 26 (f)(4)(A) and the position of the parties. The order may
280 address other matters, including the allocation of discovery costs, as are necessary
281 for the proper management of discovery in the action. An order may be altered or
282 amended as justice may require. The court may combine the discovery conference
283 with a pretrial conference authorized by Rule 16.
284 (g) Signing Discovery Request, Responses, and Objections.
285 (1) Signature Required; Effect of Signature. Every discovery request,
286 response, or objection must be signed by at least one attorney of record in the
287 attorney's individual name, or by the party personally, if self-represented, state the
288 signer's address, electronic mail address for electronic service, telephone number,
289 and State Board of Law Examiners identification number, if applicable. By
290 signing, the attorney or party certifies that the signer has read the request,
291 response, or objection, and that to the best of the signer's knowledge, information,
292 and belief formed after a reasonable inquiry
293 (A) with respect to an expert disclosure, it is complete and correct as of the
294 time it is made; and
295 (B) with respect to a discovery request, response or objection, it is:
296 (i) consistent with these rules and warranted by existing law or by a good
297 faith argument for extending, modifying or reversing existing law;
(B) (ii) not interposed for any improper purpose, such as
to harass, cause
299 unnecessary delay or needlessly increase the cost of litigation; and
(C) (iii) neither unreasonable nor unduly burdensome or
301 considering the needs of the case, prior discovery in the case, the amount in
302 controversy, and the importance of the issues at stake in the litigation.
303 (2) Failure to Sign. Other parties have no duty to act on an unsigned
304 request, response, or objection until it is signed, and the court, on motion or on its
305 own, must strike it unless a signature is promptly supplied after the omission is
306 called to the attorney's or party's attention.
307 (3) Sanction for Improper Certification. If a certification violates this rule,
308 without substantial justification, the court, on motion or its own, must impose an
309 appropriate sanction on the signer, the party on whose behalf the signer was acting,
310 or both. The sanction may include an order to pay the reasonable expenses,
311 including attorney's fees, caused by the violation.
312 EXPLANATORY NOTE
313 Rule 26 was amended, effective July 1, 1981; March 1, 1986; March 1,
314 1990; March 1, 1996; March 1, 2008; March 1, 2011; March 1, 2013; March 1,
315 2015; March 1, 2017;_______________.
316 Rule 26 is derived from Fed.R.Civ.P. 26
317 As amended, effective March 1, 1996, a party deposing another party's
318 expert witness under subdivision (b)(4)(A)(ii) must pay the expert a reasonable fee
319 under subdivision (b)(4)(C), even though a court order has not been obtained
320 authorizing the deposition or commanding payment of expert witness fees.
321 Rule 26 was amended, effective March 1, 2008, to implement changes
322 related to discovery of electronically stored information. The changes reflect the
323 2006 amendments to Fed.R.Civ.P. 26. Subdivision (b) was amended to incorporate
324 a new subparagraph (b)(2)(B) on limitations to discovery of electronic information.
325 A new paragraph (b)(6) was also added to address claims of privilege or protection
326 of trial preparation materials.
327 Rule 26 was amended, effective March 1, 2011, in response to the
328 December 1, 2007, revision of the Federal Rules of Civil Procedure. The language
329 and organization of the rule were changed to make the rule more easily understood
330 and to make style and terminology consistent throughout the rules.
331 Subparagraph (b)(1)(A) was amended, effective March 1, 2013, to include a
332 definition of "electronically stored information" and to designate what types of
333 metadata may be discovered. Effective March 1, 2017, this language was
334 transferred to subparagraph (b)(1)(B)(ii).
335 Paragraph (b)(4) was amended, effective________________, to require
336 expert witness disclosures. The amendments were derived from Fed.R.Civ.P. 26.
337 Subparagraph (c)(1)(H) was amended, effective March 1, 2015, to remove a
338 reference to filing documents in a sealed paper envelope. Items are filed with the
339 court electronically, and may be designated as sealed when submitted.
340 Subdivision (f) was amended, effective March 1, 2013, to provide a
341 procedure for discovery meetings and conferences and for the formulation of
342 discovery plans and reports, with an emphasis on discussing and planning for the
343 discovery of electronic information.
344 Paragraph (g)(1) was amended, effective March 1, 2015, to specify that the
345 attorney's electronic mail address for electronic service must be included with the
347 SOURCES: Joint Procedure Committee Minutes of ________________;
348 May 12-13, 2016, pages 10-15; January 28-29, 2016, pages 13-14; April 24-25,
349 2014, page 25; January 26-27, 2012, page 17-19; January 29-30, 2009, page 6;
350 September 25, 2008, pages 21-22; January 25, 2007, pages 9-10; September 28-29,
351 2006, pages 18-20; January 26-27, 1995, pages 10-12; September 29-30, 1994,
352 pages 21-22; April 20, 1989, page 2; December 3, 1987, page 11; April 26, 1984,
353 page 28; January 20, 1984, pages 23-31; December 11-12, 1980, page 2; October
354 30-31, 1980, pages 9-10; September 20-21, 1979, page 19; Fed.R.Civ.P. 26.
355 CROSS REFERENCE: N.D.R.Civ.P. 16 (Pretrial Procedure-Formulating
356 Issues), N.D.R.Civ.P. 28 (Persons Before Whom Depositions May Be Taken),
357 N.D.R.Civ.P. 29 (Stipulations Regarding Discovery Procedure), N.D.R.Civ.P. 30
358 (Depositions Upon Oral Examination), N.D.R.Civ.P. 30.1 (Uniform Audio-Visual
359 Deposition Rule), N.D.R.Civ.P. 31 (Depositions of Witnesses Upon Written
360 Questions), N.D.R.Civ.P. 33 (Interrogatories to Parties), N.D.R.Civ.P. 34
361 (Production of Documents and Things and Entry Upon Land for Inspection and
362 Other Purposes), N.D.R.Civ.P. 35 (Physical and Mental Examination of Persons),
363 N.D.R.Civ.P. 36 (Requests for Admission), and N.D.R.Civ.P. 37 (Failure to Make
364 Discovery-Sanctions); N.D.R.Ev. 507 (Trade Secrets), N.D.R.Ev. 510 (Waiver of
365 Privilege by Voluntary Disclosure), and N.D.R.Ev. 706 (Court-Appointed