Obsolete Date: 3/1/2011
(a) Order for Examination. If the mental or physical condition (including the blood group) of a party, or a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and must specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
(b) Report of Examiner.
(1) If requested by the party against whom an order is made under Rule 35(a) or the person examined, the party causing the examination to be made shall deliver to the requestor a copy of a detailed written report of the examiner setting out the examiner's findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination is entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows inability to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if an examiner fails or refuses to make a report the court may exclude the examiner's testimony if offered at the trial.
(2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege the party may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical condition.
(3) This subdivision applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subdivision does not preclude discovery of a report of an examiner or the taking of a deposition of the examiner in accordance with the provisions of any other rule.
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).