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 and proportional to the needs of the case,
14 considering the importance of the issues at stake in the action, the amount in
15 controversy, the parties' relative access to relevant information, the parties'
16 resources, the importance of the discovery in resolving the issues, and whether the
17 burden or expense of the proposed discovery outweighs its likely benefit.
18 Information within this scope of discovery need not be admissible in evidence to
19 be discoverable.
, including the existence, description, nature, custody, condition,
and location of any documents, electronically stored information, or other tangible
things and the identity and location of persons 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. Relevant information need not be
admissible at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence. For the purposes of the discovery rules, the
phrase "electronically stored information" includes reasonably accessible metadata
that will enable the discovering party to have the ability to access such
as the date sent, date received, author, and recipients. The phrase does not include
other metadata unless the parties agree otherwise or the court orders otherwise
upon motion of a party and a showing of good cause for the production of certain
metadata. All discovery is subject to the limitations imposed by Rule
33 (B) Limitations on Frequency and Extent.
34 (i) When Required. On motion or on its own, the court must limit the
35 frequency or extent of discovery otherwise allowed by these rules if it determines
37 discovery sought is unreasonably cumulative or duplicative, or it can be
38 obtained from some other source that is more convenient, less burdensome, or less
40 the party seeking discovery has had ample opportunity to obtain the
41 information by discovery in the action; or
burden or expense of the proposed discovery is outside the scope
43 permitted by Rule 26(b)(1)(A)
outweighs its likely benefit, considering the needs
of the case, the amount in controversy, the parties' resources, the importance of the
issues at stake in the action, and the importance of the discovery in resolving the
47 (ii) Specific Limitations on Electronically Stored Information. For the
48 purposes of the discovery rules, the phrase "electronically stored information"
49 includes reasonably accessible metadata that will enable the discovering party to
50 have the ability to access such information as the date sent, date received, author,
51 and recipients. The phrase does not include other metadata unless the parties agree
52 otherwise or the court orders otherwise upon motion of a party and a showing of
53 good cause for the production of certain metadata. A party need not provide
54 discovery of electronically stored information from sources that the party identifies
55 as not reasonably accessible because of undue burden or cost. On motion to
56 compel discovery or for a protective order, the party from whom discovery is
57 sought must show that the information is not reasonably accessible because of
58 undue burden or cost. If that showing is made, the court may nonetheless order
59 discovery from such sources if the requesting party shows good cause, considering
60 the limitations of Rule 26(b)(1)(
B A). The court may specify conditions for the
62 (2) Insurance Agreements. If a person carrying on an insurance business
63 might be liable to satisfy part or all of a judgment in an action or to indemnify or
64 reimburse for payments made to satisfy the judgment, a party may obtain discovery
65 of the existence and contents of the insurance agreement. Disclosure of the
66 insurance agreement is not reason for its admission in evidence at trial. An
67 application for insurance may not be treated as part of an insurance agreement.
68 (3) Trial Preparation Materials.
69 (A) Documents and Tangible Objects. Ordinarily, a party may not discover
70 documents and tangible things that are prepared in anticipation of litigation or for
71 trial by or for another party or its representative (including the other party's
72 attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule
73 26(b)(5), these materials may be discovered if:
74 (i) they are otherwise discoverable under Rule 26(b)(1); and
75 (ii) the party shows that it has substantial need of the materials to prepare its
76 case and cannot, without undue hardship, obtain their substantial equivalent by
77 other means.
78 (B) Protection Against Disclosure. If the court orders discovery of those
79 materials, it must protect against disclosure of the mental impressions, conclusions,
80 opinions, or legal theories of a party's attorney or other representative concerning
81 the litigation.
82 (C) Previous Statement. Any party or other person may, on request and
83 without the required showing, obtain the person's own previous statement about
84 the action or its subject matter. If the request is refused, the person may move for a
85 court order and Rule 37(a)(5) applies to the award of expenses. A previous
86 statement is:
87 (i) a written statement that the person has signed or otherwise adopted or
88 approved; or
89 (ii) a contemporaneous stenographic, mechanical, electrical, or other
90 recording, or a transcription of it, that recites substantially verbatim the person's
91 oral statement.
92 (4) Trial Preparation Experts.
93 (A) Expert Who May Testify. Discovery of facts known and opinions held
94 by experts, otherwise discoverable under Rule 26(b)(1) and acquired or developed
95 in anticipation of litigation or for trial, may be obtained only as follows:
96 (i) a party may through interrogatories require any other party to identify
97 each person whom the other party expects to call as an expert witness at trial; to
98 state the subject matter on which the expert is expected to testify; and to state the
99 substance of the facts and opinions to which the expert is expected to testify and a
100 summary of the grounds for each opinion;
101 (ii) a party may depose any person who has been identified as an expert
102 witness whose opinions may be presented at trial unless the court finds, on motion,
103 that the deposition is unnecessary, overly burdensome, or unfairly oppressive.
104 (B) Expert Employed Only for Trial Preparation. Ordinarily, a party may
105 not, by interrogatories or deposition, discover facts known or opinions held by an
106 expert who has been retained or specially employed by another party in
107 anticipation of litigation or to prepare for trial and who is not expected to be called
108 as a witness at trial. But a party may do so only:
109 (i) as provided in Rule 35(b); or
110 (ii) on showing exceptional circumstances under which it is impracticable
111 for the party to obtain facts or opinions on the same subject by other means.
112 (C) Payment. Unless manifest injustice would result, the court must require
113 that the party seeking discovery:
114 (i) pay the expert a reasonable fee for time spent in responding to discovery
115 under Rule 26(b)(4)(A) or (B); and
116 (ii) for discovery under Rule 26(b)(4)(A) the court may require, and for
117 discovery under Rule 26(b)(4)(B) the court must require the party seeking
118 discovery to pay the other party a fair portion of the fees and expenses it
119 reasonably incurred in obtaining the expert's facts and opinions.
120 (5) Claiming Privilege or Protecting Trial Preparation Materials.
121 (A) Information Withheld. When a party withholds information otherwise
122 discoverable by claiming that the information is privileged or subject to protection
123 as trial-preparation material, the party must:
124 (i) expressly make the claim; and
125 (ii) describe the nature of the documents, communications, or tangible
126 things not produced or disclosed, and do so in a matter that, without revealing
127 information itself privileged or protected, will enable other parties to assess the
129 (B) Information Produced. If information is produced in discovery that is
130 subject to a claim of privilege or of protection as trial-preparation material, the
131 party making the claim may notify any party that received the information of the
132 claim and the basis for it. After being notified, a receiving party must promptly
133 return, sequester, or destroy the specified information and any copies it has and
134 may not use or disclose the information until the claim is resolved. A receiving
135 party may promptly present the information to the court under seal for
136 determination of the claim. If the receiving party disclosed the information before
137 being notified, it must take reasonable steps to retrieve it. The producing party
138 must preserve the information until the claim is resolved.
139 (c) Protective Orders.
140 (1) In General. A party or any person from whom discovery is sought may
141 move for a protective order in the court where the action is pending, or as an
142 alternative on matters relating to a deposition, in the court in the district where the
143 deposition will be taken. The court may, for good cause shown, issue an order to
144 protect a party or person from annoyance, embarrassment, oppression, or undue
145 burden or expense, including one or more of the following:
146 (A) forbidding the discovery;
147 (B) specifying terms and conditions, including time or place or the
148 allocation of expenses for the discovery;
149 (C) prescribing a discovery other than the one selected by the party seeking
151 (D) forbidding inquiry into certain matters, or limiting the scope of
152 discovery to certain matters;
153 (E) designating the persons who may be present while the discovery is
155 (F) requiring that a deposition be sealed and opened only on court order;
156 (G) requiring that a trade secret or other confidential research, development,
157 or commercial information not be revealed or be revealed only in a specified way;
159 (H) requiring that the parties simultaneously file specified sealed documents
160 or information to be opened as the court directs.
161 (2) Ordering Discovery. If a motion for a protective order is wholly or
162 partially denied, the court may, on just terms, order that any party or person
163 provide or permit discovery.
164 (3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses.
165 (d) Sequence and Timing of Discovery. Unless, on motion, the court orders
166 otherwise for the parties' and witnesses' convenience and in the interests of justice,
167 methods of discovery may be used in any sequence and discovery by one party
168 does not require any other party to delay its discovery.
169 (e) Supplementing Responses.
170 (1) In General. A party who has responded to an interrogatory, request for
171 production, or request for admission, must supplement or correct its response:
172 (A) in a timely manner if the party learns that in some material respect the
173 response is incomplete or incorrect, and if the additional or corrective information
174 has not otherwise been made known to the parties during the discovery process or
175 in writing; or
176 (B) as ordered by the court.
177 (2) Witnesses. A party has a duty to timely supplement a response about:
178 (A) the identity and location of persons having knowledge of discoverable
179 matters, and
180 (B) the identity of each person expected to be called as an expert witness at
181 trial, the subject matter on which the person is expected to testify, and the
182 substance of the person's testimony.
183 (f) Discovery Meeting, Discovery Conference, Discovery Plan.
184 (1) Discovery Meeting. No earlier than 40 days after the complaint is filed
185 in an action, any party's attorney or a self-represented party may request in writing
186 a meeting on the subject of discovery, including the discovery of electronically
187 stored information. If such a request is made, the parties must meet within 21 days,
188 unless agreed otherwise by the parties or their attorneys or another time for the
189 meeting is ordered by the court. Even if the parties or their attorneys do not seek to
190 have a discovery meeting, at any time after the complaint is filed the court may
191 direct the parties or their attorneys to appear before it for a discovery conference.
192 (2) Matters for Consideration. During a discovery meeting held under Rule
193 26(f)(1), the attorneys and any self-represented parties must:
194 (A) consider the nature and basis of the parties' claims and defenses and the
195 possibilities for promptly settling or resolving the case, and
196 (B) discuss the preparation of a discovery plan as set forth in Rule 26 (f)(3).
197 (3) Conduct of Meeting. Attorneys for the parties, and any self-represented
198 parties, that have appeared in the case are jointly responsible for arranging the
199 meeting, for being prepared to discuss a discovery plan, and for attempting in good
200 faith to agree on a discovery plan. The meeting may be held by telephone, by
201 videoconference, or in person, or by a combination of methods, unless the court,
202 on motion, orders the attorneys and the self-represented parties to attend in person.
203 (4) Discovery Plan or Report.
204 (A) In General. If a discovery plan is agreed on, it must be submitted to the
205 court within 14 days after the meeting, and the parties may request a conference
206 with the court regarding the plan. If the parties do not agree on a discovery plan,
207 they must submit to the court within 14 days after the meeting a joint report
208 containing those parts of a discovery plan on which they agree and the position of
209 each of the parties on the parts upon which they disagree. Unless the parties agree
210 otherwise, the attorney for the first plaintiff listed on the complaint is responsible
211 for submitting the discovery plan or joint report.
212 (B) Discovery Plan Contents. A discovery plan must contain the following:
213 (i) a statement of the issues as they then appear;
214 (ii) a proposed plan and schedule of discovery, including the 215 discovery of electronically stored information;
216 (iii) with respect to electronically stored information, and if appropriate
217 under the circumstances of the case, a reference to the preservation of such
218 information, the media form, format, or procedures by which such information will
219 be produced, the allocation of the costs of preservation, production, and, if
220 necessary, restoration, of such information, the method for asserting or preserving
221 claims of privilege or of protection of the information as trial-preparation materials
222 if different from that provided in Rule 26 (b)(5), the method for asserting or
223 preserving confidentiality and proprietary status, and any other matters addressed
224 by the parties;
225 (iv) any limitations proposed to be placed on discovery, including, if
226 appropriate under the circumstances of the case, that discovery be conducted in
227 phases or be limited to or focused on particular issues;
228 (v) when discovery should be completed; and
229 (vi) if appropriate under the circumstances of the case, any limitations or
230 conditions under Rule 26 (c) regarding protective orders.
231 (5) Discovery Conference. If the parties are unable to agree to a discovery
232 plan at a meeting held under Rule 26 (f)(1), they must, on motion of any party,
233 appear before the court for a discovery conference at which the court must order
234 the entry of a discovery plan after consideration of the report required to be
235 submitted under Rule 26 (f)(4)(A) and the position of the parties. The order may
236 address other matters, including the allocation of discovery costs, as are necessary
237 for the proper management of discovery in the action. An order may be altered or
238 amended as justice may require. The court may combine the discovery conference
239 with a pretrial conference authorized by Rule 16.
240 (g) Signing Discovery Request, Responses, and Objections.
241 (1) Signature Required; Effect of Signature. Every discovery request,
242 response, or objection must be signed by at least one attorney of record in the
243 attorney's individual name, or by the party personally, if self-represented, state the
244 signer's address, electronic mail address for electronic service, telephone number,
245 and State Board of Law Examiners identification number, if applicable. By
246 signing, the attorney or party certifies that the signer has read the request,
247 response, or objection, and that to the best of the signer's knowledge, information,
248 and belief formed after a reasonable inquiry it is:
249 (A) consistent with these rules and warranted by existing law or by a good
250 faith argument for extending, modifying or reversing existing law;
251 (B) not interposed for any improper purpose, such as to harass, cause
252 unnecessary delay or needlessly increase the cost of litigation; and
253 (C) neither unreasonable nor unduly burdensome or expensive, considering
254 the needs of the case, prior discovery in the case, the amount in controversy, and
255 the importance of the issues at stake in the litigation.
256 (2) Failure to Sign. Other parties have no duty to act on an unsigned
257 request, response, or objection until it is signed, and the court, on motion or on its
258 own, must strike it unless a signature is promptly supplied after the omission is
259 called to the attorney's or party's attention.
260 (3) Sanction for Improper Certification. If a certification violates this rule,
261 without substantial justification, the court, on motion or its own, must impose an
262 appropriate sanction on the signer, the party on whose behalf the signer was acting,
263 or both. The sanction may include an order to pay the reasonable expenses,
264 including attorney's fees, caused by the violation.
265 EXPLANATORY NOTE
266 Rule 26 was amended, effective July 1, 1981; March 1, 1986; March 1,
267 1990; March 1, 1996; March 1, 2008; March 1, 2011; March 1, 2013; March 1,
269 Rule 26 is derived from Fed.R.Civ.P. 26
270 As amended, effective March 1, 1996, a party deposing another party's
271 expert witness under subdivision (b)(4)(A)(ii) must pay the expert a reasonable fee
272 under subdivision (b)(4)(C), even though a court order has not been obtained
273 authorizing the deposition or commanding payment of expert witness fees.
274 Rule 26 was amended, effective March 1, 2008, to implement changes
275 related to discovery of electronically stored information. The changes reflect the
276 2006 amendments to Fed.R.Civ.P. 26. Subdivision (b) was amended to incorporate
277 a new subparagraph
(b)(2)(B) (b)(1)(B)(ii) on limitations to discovery of
278 information. A new paragraph (b)(6) was also added to address claims of privilege
279 or protection of trial preparation materials.
280 Rule 26 was amended, effective March 1, 2011, in response to the
281 December 1, 2007, revision of the Federal Rules of Civil Procedure. The language
282 and organization of the rule were changed to make the rule more easily understood
283 and to make style and terminology consistent throughout the rules.
284 Paragraph (b)(1) was amended, effective_____________, to incorporate
285 considerations related to proportionality into subparagraph (b)(1)(A) as a limitation
286 on the scope of discovery. This change was patterned on the Dec. 1, 2015
287 amendments to Fed.R.Civ.P. 26. Language defining "electronically stored
288 information" and designating what types of metadata may be discovered was
289 moved to subparagraph (b)(1)(B)(ii).
Subparagraph (b)(1)(A) was amended, effective March 1, 2013, to include a
definition of "electronically stored information" and to designate what types of
metadata may be discovered.
293 Subparagraph (c)(1)(H) was amended, effective March 1, 2015, to remove a
294 reference to filing documents in a sealed paper envelope. Items are filed with the
295 court electronically, and may be designated as sealed when submitted.
296 Subdivision (f) was amended, effective March 1, 2013, to provide a
297 procedure for discovery meetings and conferences and for the formulation of
298 discovery plans and reports, with an emphasis on discussing and planning for the
299 discovery of electronic information.
300 Paragraph (g)(1) was amended, effective March 1, 2015, to specify that the
301 attorney's electronic mail address for electronic service must be included with the
303 SOURCES: Joint Procedure Committee Minutes of
304 ___________________; April 24-25, 2014, page 25; January 26-27, 2012, page
305 17-19; January 29-30, 2009, page 6; September 25, 2008, pages 21-22; January 25,
306 2007, pages 9-10; September 28-29, 2006, pages 18-20; January 26-27, 1995,
307 pages 10-12; September 29-30, 1994, pages 21-22; April 20, 1989, page 2;
308 December 3, 1987, page 11; April 26, 1984, page 28; January 20, 1984, pages
309 23-31; December 11-12, 1980, page 2; October 30-31, 1980, pages 9-10;
310 September 20-21, 1979, page 19; Fed.R.Civ.P. 26.
311 CROSS REFERENCE: N.D.R.Civ.P. 16 (Pretrial Procedure-Formulating
312 Issues), N.D.R.Civ.P. 28 (Persons Before Whom Depositions May Be Taken),
313 N.D.R.Civ.P. 29 (Stipulations Regarding Discovery Procedure), N.D.R.Civ.P. 30
314 (Depositions Upon Oral Examination), N.D.R.Civ.P. 30.1 (Uniform Audio-Visual
315 Deposition Rule), N.D.R.Civ.P. 31 (Depositions of Witnesses Upon Written
316 Questions), N.D.R.Civ.P. 33 (Interrogatories to Parties), N.D.R.Civ.P. 34
317 (Production of Documents and Things and Entry Upon Land for Inspection and
318 Other Purposes), N.D.R.Civ.P. 35 (Physical and Mental Examination of Persons),
319 N.D.R.Civ.P. 36 (Requests for Admission), and N.D.R.Civ.P. 37 (Failure to Make
320 Discovery-Sanctions); N.D.R.Ev. 507 (Trade Secrets), N.D.R.Ev. 510 (Waiver of
321 Privilege by Voluntary Disclosure), and N.D.R.Ev. 706 (Court-Appointed