RULE 26. GENERAL PROVISIONS GOVERNING DISCOVERY
Effective Date: 3/1/2011
Obsolete Date: 3/1/2013
(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods:
(1) depositions on oral examination or written questions;
(2) written interrogatories;
(3) production of documents or things or permission to enter 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, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense, including the existence, description, nature, custody, condition, and location of any documents 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. All discovery is subject to the limitations imposed by Rule 26(b)(1)(B)(i).(B) Limitations on Frequency and Extent.(2) Insurance Agreements. If a person carrying on an insurance business might be liable to satisfy part or all of a judgment 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. Disclosure of the insurance agreement is not reason for its admission in evidence at trial. An application for insurance may not be treated as part of an insurance agreement.(i) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules if it determines that:-- discovery sought is unreasonably cumulative or duplicative, or it can be obtained from some other source that is more convenient, less burdensome, or less expensive;(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 Rule 26(b)(1)(B). The court may specify conditions for the discovery.
-- the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
-- the burden or expense of the proposed discovery 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 issues.
(3) Trial Preparation Materials.(A) Documents and Tangible Objects. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or 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(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.
(ii) the party shows that it has substantial need of the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.(C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order and Rule 37(a)(5) applies to the award of expenses. A previous statement is:(4) Trial Preparation Experts.(i) a written statement that the person has signed or otherwise adopted or approved; or
(ii) a contemporaneous stenographic, mechanical, electrical, or other recording, or a transcription of it, that recites substantially verbatim the person's oral statement.(A) Expert Who May Testify. Discovery of facts known and opinions held by experts, otherwise discoverable under Rule 26(b)(1) and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:(5) Claiming Privilege or Protecting Trial Preparation Materials.(i) 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 party may depose any person who has been identified as an expert witness whose opinions may be presented at trial unless the court finds, on motion, that the deposition is unnecessary, overly burdensome, or unfairly oppressive.(B) Expert Employed Only for Trial Preparation. 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 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(C) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery:
(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.(i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (B); and
(ii) for discovery under Rule 26(b)(4)(A) the court may require, and for discovery under Rule 26(b)(4)(B) the court must require the party seeking discovery to pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert's facts and opinions.(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:(i) expressly make the claim; and(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.
(ii) 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 claim.
(c) Protective Orders.
(1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending, or as an alternative on matters relating to a deposition, in the court in the district where the deposition will be taken. The court may, for good cause shown, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:(A) forbidding the discovery;(B) specifying terms and conditions, including time or place for the discovery;(C) prescribing a discovery other than the one selected by the party seeking discovery;(D) forbidding inquiry into certain matters, or limiting the scope of discovery to certain matters;(E) designating the persons who may be present while the discovery is conducted;(F) requiring that a deposition be sealed and opened only on court order;(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and(H) requiring that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as the court directs.(2) Ordering Discovery. If a motion for a protective order is wholly or partially denied, the court may, on just terms, order that any party or person provide or permit discovery.
(3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses.
(d) Sequence and Timing of Discovery. Unless, on motion, the court orders otherwise for the parties' and witnesses' convenience and in the interests of justice, methods of discovery may be used in any sequence and discovery by one party does not require any other party to delay its discovery.
(e) Supplementing Responses.
(1) In General. A party who has responded to an interrogatory, request for production, or request for admission, must supplement or correct its response:(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.
(f) Discovery Conference.
(1) Conference Timing. At any time after an action has been filed, the court may order the parties' attorneys to appear for a discovery conference.
(2) Motion for Conference. On motion, the court must order a discovery conference if the motion includes:(A) a statement of the issues;(B) a proposed discovery plan and schedule;(C) proposed limitations on discovery;(D) other proposed discovery orders; and(E) a statement that the movant has made a reasonable effort to reach agreement with opposing attorneys on the matters set forth in the motion.(3) Discovery Plan. If a party proposes making a discovery plan, each party has a duty to participate in good faith in the framing of the plan.
(4) Discovery Order. Following the discovery conference, the court must enter an order tentatively:(A) identifying the discovery issues;(B) establishing a discovery plan and schedule;(C) setting discovery limits, if any; and(D) determining matters, including the allocation of expenses, necessary for the proper management of discovery in the action.A discovery order may be altered or amended whenever 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 under Rule 16.
(g) Signing Discovery Request, Responses, and Objections.
(1) Signature Required; Effect of Signature. Every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's individual name, or by the party personally, if self-represented, state the signer's address, electronic mail address, telephone number, and State Board of Law Examiners identification number, if applicable. By signing, the attorney or party 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:(A) consistent with these rules and warranted by existing law or by a good faith argument for extending, modifying or reversing existing law;(B) not interposed for any improper purpose, such as to harass, cause unnecessary delay or needlessly increase the cost of litigation; and(C) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the litigation.(2) Failure to Sign. Other parties have no duty to act on an unsigned request, response, or objection until it is signed, and the court, on motion or on its own, must strike it unless a signature is promptly supplied after the omission is called to the attorney's or party's attention.
(3) Sanction for Improper Certification. If a certification violates this rule, without substantial justification, the court, on motion or its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation.
Rule 26 was amended, effective July 1, 1981; March 1, 1986; March 1, 1990; March 1, 1996; March 1, 2008; March 1, 2011; March 1, 2013; March 1, 2015; March 1, 2017; March 16, 2022.
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.
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. Effective March 1, 2017, this language was transferred to subparagraph (b)(1)(B)(ii).
Subparagraph (c)(1)(H) was amended, effective March 1, 2015, to remove a reference to filing documents in a sealed paper envelope. Items are filed with the court electronically, and may be designated as sealed when submitted.
Subdivision (f) was amended, effective March 1, 2013, to provide a procedure for discovery meetings and conferences and for the formulation of discovery plans and reports, with an emphasis on discussing and planning for the discovery of electronic information.
Paragraph (g)(1) was amended, effective March 1, 2015, to specify that the attorney's electronic mail address for electronic service must be included with the signature.
SOURCES: Joint Procedure Committee Minutes of May 12-13, 2016, pages 10-15; January 28-29, 2016, pages 13-14; April 24-25, 2014, page 25; January 26-27, 2012, page 17-19; 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.
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), N.D.R.Civ.P. 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), N.D.R.Civ.P. 36 (Requests for Admission), and 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).