RULE 26. GENERAL PROVISIONS GOVERNING DISCOVERY
Effective Date: 3/1/2017
Obsolete Date: 3/16/2022
(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, 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. 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:
(ii) Specific Limitations on Electronically Stored Information. 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 information 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. 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.
- 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;
- 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:(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:(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.
- the subject matter on which the expert is expected to testify;
- the substance of the facts and opinions to which the expert is expected to testify; and
- a summary of the grounds for each opinion;(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 sealed documents or information 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 Meeting, Discovery Conference, Discovery Plan.
(1) Discovery Meeting. No earlier than 40 days after the complaint is filed in an action, any party's attorney or a self-represented party may request in writing a meeting on the subject of discovery, including the discovery of electronically stored information. If such a request is made, the parties must meet within 21 days, unless agreed otherwise by the parties or their attorneys or another time for the meeting is ordered by the court. Even if the parties or their attorneys do not seek to have a discovery meeting, at any time after the complaint is filed the court may direct the parties or their attorneys to appear before it for a discovery conference.
(2) Matters for Consideration. During a discovery meeting held under Rule 26(f)(1), the attorneys and any self-represented parties must:(A) consider the nature and basis of the parties' claims and defenses and the possibilities for promptly settling or resolving the case, and(B) discuss the preparation of a discovery plan as set forth in Rule 26 (f)(3).(3) Conduct of Meeting. Attorneys for the parties, and any self-represented parties, that have appeared in the case are jointly responsible for arranging the meeting, for being prepared to discuss a discovery plan, and for attempting in good faith to agree on a discovery plan. The meeting may be held by telephone, by videoconference, or in person, or by a combination of methods, unless the court, on motion, orders the attorneys and the self-represented parties to attend in person.
(4) Discovery Plan or Report.(A) In General. If a discovery plan is agreed on, it must be submitted to the court within 14 days after the meeting, and the parties may request a conference with the court regarding the plan. If the parties do not agree on a discovery plan, they must submit to the court within 14 days after the meeting a joint report containing those parts of a discovery plan on which they agree and the position of each of the parties on the parts upon which they disagree. Unless the parties agree otherwise, the attorney for the first plaintiff listed on the complaint is responsible for submitting the discovery plan or joint report.(B) Discovery Plan Contents. A discovery plan must contain the following:(5) Discovery Conference. If the parties are unable to agree to a discovery plan at a meeting held under Rule 26 (f)(1), they must, on motion of any party, appear before the court for a discovery conference at which the court must order the entry of a discovery plan after consideration of the report required to be submitted under Rule 26 (f)(4)(A) and the position of the parties. The order may address other matters, including the allocation of discovery costs, as are necessary for the proper management of discovery in the action. An order may be altered or amended as justice may require. The court may combine the discovery conference with a pretrial conference authorized by Rule 16.(i) a statement of the issues as they then appear;(ii) a proposed plan and schedule of discovery, including the discovery of electronically stored information;(iii) with respect to electronically stored information, and if appropriate under the circumstances of the case, a reference to the preservation of such information, the media form, format, or procedures by which such information will be produced, the allocation of the costs of preservation, production, and, if necessary, restoration, of such information, the method for asserting or preserving claims of privilege or of protection of the information as trial-preparation materials if different from that provided in Rule 26 (b)(5), the method for asserting or preserving confidentiality and proprietary status, and any other matters addressed by the parties;(iv) any limitations proposed to be placed on discovery, including, if appropriate under the circumstances of the case, that discovery be conducted in phases or be limited to or focused on particular issues;(v) when discovery should be completed; and(vi) if appropriate under the circumstances of the case, any limitations or conditions under Rule 26 (c) regarding protective orders.
(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 for electronic service, 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).