N.D.R.Civ.P.
RULE 26. GENERAL PROVISIONS GOVERNING DISCOVERY
(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods:
(1) depositions 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 (b)(2)(A)
Rule 26(b)(1)(B).
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
(ii) 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)(5) 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
opinion.;
(ii) 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
(ii) 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
(ii) 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
expressly; and
(ii) 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)(5) 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
discovery.
(e) 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
responses.
(f) Discovery Conference.
(1) Conference Timing. At any time after an action has been
filed, the court may direct
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
motion.
(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
order tentatively:
(A) identifying the discovery issues for
discovery purposes,;
(B) establishing a discovery plan and
schedule for discovery,;
(C) setting limitations on discovery
limits, if any,; and
(D) determining 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.
(g) Signing 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, electronic 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.
EXPLANATORY NOTE
Rule 26 was amended, effective July 1, 1981; March 1, 1986; March 1, 1990; March 1, 1996; March 1, 2008; March 1, 2011.
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 March 1, 2011, 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
§§ 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).