RULE 35. PHYSICAL AND MENTAL EXAMINATION
Effective Date: 3/1/2011
(a) Order for an Examination.
(1) In General. The court where the action is pending may order a party whose mental or physical condition - including blood group - is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control.
(2) Motion and Notice; Contents of the Order. The order:(A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and(B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.
(b) Examiner's Report.
(1) Request by the Party or Person Examined. The party who moved for the examination must, on request, deliver a copy of the examiner's report, together with like reports of all earlier examinations of the same condition. The request may be made by the party against whom the examination order was issued or by the person examined.
(2) Contents. The examiner's report must be in writing and must set out in detail the examiner's findings, including diagnoses, conclusions, and the results of any tests.
(3) Request by the Moving Party. After delivering the reports, the party who moved for the examination may request - and is entitled to receive - from the party against whom the examination order was issued like reports of all earlier or later examinations of the same condition. But those reports need not be delivered by the party with custody or control of the person examined if the party shows that it could not obtain them.
(4) Waiver of Privilege. By requesting and obtaining the examiner's report, or by deposing the examiner, the party examined waives any privilege it may have - in that action or any other action involving the same controversy - concerning testimony about all examinations of the same condition.
(5) Failure to Deliver a Report. The court on motion may order - on just terms - that a party deliver the report of an examination. If the report is not provided, the court may exclude the examiner's testimony at trial.
(6) Scope. This subdivision (b) applies also to an examination made by the parties' stipulation, unless the stipulation states otherwise. This subdivision does not preclude obtaining an examiner's report or deposing an examiner under other rules.
Rule 35 was amended, effective March 1, 1990; March 1, 1994; March 1, 2011.
This rule is derived from Fed.R.Civ.P. 35.
Rule 35 was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Rule 35 was amended, effective March 1, 1994, to track the 1991 federal amendment, by authorizing the court to require a physical or mental examination conducted by any person who is suitably licensed or certified such as a dentist, occupational therapist or clinical psychologist. The requirement that the examiner be "suitably licensed or certified" authorizes the court to assess the credentials of the examiner to assure that no person is subject to a court ordered examination by an examiner whose testimony would be of such limited value that it would be unjust to require the person to undergo the invasion of privacy associated with the examination.
Rule 35 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, pages 29-31; October 29-30, 1992, page 10; April 20, 1989, page 2; December 3, 1987, page 11; November 29-30, 1979, page 7; Fed.R.Civ.P. 35.
CROSS REFERENCE: N.D.R.Civ.P. 26 (General Provisions Governing Discovery), and N.D.R.Civ.P. 29 (Stipulations Regarding Discovery Procedure); N.D.R.Ev. 503 (Physician and Psychotherapist-Patient Privilege) and N.D.R.Ev. 706 (Court Appointed Experts).