Rule 26. General provisions governing disclosure and
discovery.
(a) Disclosure. This rule applies unless changed or
supplemented by a rule governing disclosure and discovery in a practice area.
(a)(1) Initial disclosures. Except in cases exempt under paragraph
(a)(3), a party shall, without waiting for a discovery request, serve on the other
parties:
(a)(1)(A) the name and, if
known, the address and telephone number of:
(a)(1)(A)(i) each individual likely to have discoverable
information supporting its claims or defenses, unless solely for impeachment,
identifying the subjects of the information; and
(a)(1)(A)(ii) each fact witness
the party may call in its case-in-chief and, except for an adverse party, a
summary of the expected testimony;
(a)(1)(B) a copy of all
documents, data compilations, electronically stored information, and tangible
things in the possession or control of the party that the party may offer in
its case-in-chief, except charts, summaries and demonstrative exhibits that
have not yet been prepared and must be disclosed in accordance with paragraph
(a)(5);
(a)(1)(C) a computation of any
damages claimed and a copy of all discoverable documents or evidentiary
material on which such computation is based, including materials about the
nature and extent of injuries suffered;
(a)(1)(D) a copy of any
agreement under which any person may be liable to satisfy part or all of a
judgment or to indemnify or reimburse for payments made to satisfy the
judgment; and
(a)(1)(E) a copy of all
documents to which a party refers in its pleadings.
(a)(2) Timing of initial disclosures. The disclosures required by paragraph
(a)(1) shall be served
on the other parties:
(a)(2)(A) by the plaintiff
within 14 days after filing of the first answer to the complaint; and
(a)(2)(B) by the defendant
within 42 days after filing of the first answer to the complaint or within 28
days after that defendant’s appearance, whichever is later.
(a)(3) Exemptions.
(a)(3)(A) Unless otherwise
ordered by the court or agreed to by the parties, the requirements of paragraph
(a)(1) do not apply to actions:
(a)(3)(A)(i) for judicial review of adjudicative proceedings
or rule making proceedings of an administrative agency;
(a)(3)(A)(ii) governed by Rule
65B or Rule 65C;
(a)(3)(A)(iii) to enforce an
arbitration award;
(a)(3)(A)(iv) for water rights
general adjudication under Title 73, Chapter 4, Determination of Water Rights.
(a)(3)(B) In an exempt action,
the matters subject to disclosure under paragraph (a)(1) are subject to
discovery under paragraph (b).
(a)(4) Expert testimony.
(a)(4)(A) Disclosure of expert testimony. A party shall, without waiting for a
discovery request, serve on the other parties the following information
regarding any person who may be used at trial to present evidence under Rule
702 of the Utah Rules of Evidence and who is retained or specially employed to
provide expert testimony in the case or whose duties as an employee of the
party regularly involve giving expert testimony: (i) the expert’s name and qualifications, including a
list of all publications authored within the preceding 10 years, and a list of
any other cases in which the expert has testified as an expert at trial or by
deposition within the preceding four years, (ii) a brief summary of the
opinions to which the witness is expected to testify, (iii) all data and other
information that will be relied upon by the witness in forming those opinions,
and (iv) the compensation to be paid for the witness’s study and testimony.
(a)(4)(B) Limits on expert discovery. Further discovery may be obtained from an
expert witness either by deposition or by written report. A deposition shall
not exceed four hours and the party taking the deposition shall pay the
expert’s reasonable hourly fees for attendance at the deposition. A report
shall be signed by the expert and shall contain a complete statement of all
opinions the expert will offer at trial and the basis and reasons for them.
Such an expert may not testify in a party’s case-in-chief concerning any matter
not fairly disclosed in the report. The party offering the expert shall pay the
costs for the report.
(a)(4)(C) Timing for expert discovery.
(a)(4)(C)(i) The party who bears the burden of proof on the
issue for which expert testimony is offered shall serve on the other parties the
information required by paragraph (a)(4)(A) within seven days after the close
of fact discovery. Within seven days thereafter, the party opposing the expert
may serve notice electing either a deposition of the expert pursuant to
paragraph (a)(4)(B) and Rule 30, or a written report pursuant to paragraph
(a)(4)(B). The deposition shall occur, or the report shall be served on the
other parties, within 28 days after the election is served on the other parties. If
no election is served
on the other parties, then no further discovery of the expert shall be
permitted.
(a)(4)(C)(ii) The party who does
not bear the burden of proof on the issue for which expert testimony is offered
shall serve on the other parties the information required by paragraph
(a)(4)(A) within seven days after the later of (A) the date on which the
election under paragraph (a)(4)(C)(i)
is due, or (B) receipt of the written report or the taking of the expert’s
deposition pursuant to paragraph (a)(4)(C)(i). Within seven days thereafter, the party opposing
the expert may serve notice electing either a deposition of the expert pursuant
to paragraph (a)(4)(B) and Rule 30, or a written report pursuant to paragraph
(a)(4)(B). The deposition shall occur, or the report shall be served on the other parties,
within 28 days after the election is served on the other parties. If no election is served on the other parties,
then no further discovery of the expert shall be permitted.
(a)(4)(C)(iii) If the party who
bears the burden of proof on an issue wants to designate rebuttal expert
witnesses it shall serve on the other parties the information required by
paragraph (a)(4)(A) within seven days after the later of (A) the date on which
the election under paragraph (a)(4)(C)(ii) is due, or
(B) receipt of the written report or the taking of the expert’s deposition
pursuant to paragraph (a)(4)(C)(ii). Within seven
days thereafter, the party opposing the expert may serve notice electing either
a deposition of the expert pursuant to paragraph (a)(4)(B) and Rule 30, or a
written report pursuant to paragraph (a)(4)(B). The deposition shall occur, or
the report shall be served
on the other parties, within 28 days after the election is served on the other parties. If
no election is served
on the other parties, then no further discovery of the expert shall be
permitted.
(a)(4)(D) Multiparty actions. In multiparty actions, all parties opposing
the expert must agree on either a report or a deposition. If all parties
opposing the expert do not agree, then further discovery of the expert may be obtained
only by deposition pursuant to paragraph (a)(4)(B) and Rule 30.
(a)(4)(E) Summary of non-retained expert
testimony. If a party intends to
present evidence at trial under Rule 702 of the Utah Rules of Evidence from any
person other than an expert witness who is retained or specially employed to
provide testimony in the case or a person whose duties as an employee of the
party regularly involve giving expert testimony, that party must serve on the
other parties a written summary of the facts and opinions to which the witness
is expected to testify in accordance with the deadlines set forth in paragraph
(a)(4)(C). A deposition of such a witness may not exceed four hours.
(a)(5) Pretrial disclosures.
(a)(5)(A) A party shall, without
waiting for a discovery request, serve on the other parties:
(a)(5)(A)(i) the name and, if not previously provided, the
address and telephone number of each witness, unless solely for impeachment,
separately identifying witnesses the party will call and witnesses the party
may call;
(a)(5)(A)(ii) the name of
witnesses whose testimony is expected to be presented by transcript of a
deposition and a copy of the transcript with the proposed testimony designated;
and
(a)(5)(A)(iii) a copy of each
exhibit, including charts, summaries and demonstrative exhibits, unless solely
for impeachment, separately identifying those which the party will offer and
those which the party may offer.
(a)(5)(B) Disclosure required by
paragraph (a)(5) shall be served on the other parties at least 28 days before
trial. At least 14 days before trial, a party shall serve and file counter
designations of deposition testimony, objections and grounds for the objections
to the use of a deposition and to the admissibility of exhibits. Other than
objections under Rules 402 and 403 of the Utah Rules of Evidence, objections
not listed are waived unless excused by the court for good cause.
(b) Discovery
scope.
(b)(1) In general. Parties may discover any matter, not
privileged, which is relevant to the claim or defense of any party if the
discovery satisfies the standards of proportionality set forth below.
Privileged matters that are not discoverable or admissible in any proceeding of
any kind or character include all information in any form provided during and
created specifically as part of a request for an investigation, the
investigation, findings, or conclusions of peer review, care review, or quality
assurance processes of any organization of health care providers as defined in
the Utah Health Care Malpractice Act for the purpose of evaluating care
provided to reduce morbidity and mortality or to improve the quality of medical
care, or for the purpose of peer review of the ethics, competence, or
professional conduct of any health care provider.
(b)(2) Proportionality. Discovery and discovery requests are
proportional if:
(b)(2)(A) the discovery is
reasonable, considering the needs of the case, the amount in controversy, the
complexity of the case, the parties' resources, the importance of the issues,
and the importance of the discovery in resolving the issues;
(b)(2)(B) the likely benefits of
the proposed discovery outweigh the burden or expense;
(b)(2)(C) the discovery is
consistent with the overall case management and will further the just, speedy
and inexpensive determination of the case;
(b)(2)(D) the discovery is not
unreasonably cumulative or duplicative;
(b)(2)(E) the information cannot
be obtained from another source that is more convenient, less burdensome or
less expensive; and
(b)(2)(F) the party seeking
discovery has not had sufficient opportunity to obtain the information by
discovery or otherwise, taking into account the parties’ relative access to the
information.
(b)(3) Burden. The party seeking discovery always has the
burden of showing proportionality and relevance. To ensure proportionality, the
court may enter orders under Rule 37.
(b)(4) Electronically stored information. A party claiming that electronically stored
information is not reasonably accessible because of undue burden or cost shall
describe the source of the electronically stored information, the nature and
extent of the burden, the nature of the information not provided, and any other
information that will enable other parties to evaluate the claim.
(b)(5) Trial preparation materials. A party may obtain otherwise discoverable
documents and tangible things prepared in anticipation of litigation or for
trial by or for another party or by or for that other party's representative
(including the party’s attorney, consultant, surety, indemnitor, insurer, or
agent) only upon a showing that the party seeking discovery has substantial
need of the materials and that the party is unable without undue hardship to
obtain substantially equivalent materials by other means. In ordering discovery
of such materials, the court shall protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of an attorney or other
representative of a party.
(b)(6) Statement previously made about the
action. A party may obtain without
the showing required in paragraph (b)(5) a statement concerning the action or
its subject matter previously made by that party. Upon request, a person not a
party may obtain without the required showing a statement about the action or its
subject matter previously made by that person. If the request is refused, the
person may move for a court order under Rule 37. A statement previously made is
(A) a written statement signed or approved by the person making it, or (B) a
stenographic, mechanical, electronic, or other recording, or a transcription
thereof, which is a substantially verbatim recital of an oral statement by the
person making it and contemporaneously recorded.
(b)(7) Trial preparation; experts.
(b)(7)(A) Trial-preparation protection for draft
reports or disclosures. Paragraph
(b)(5) protects drafts of any report or disclosure required under paragraph
(a)(4), regardless of the form in which the draft is recorded.
(b)(7)(B) Trial-preparation protection for
communications between a party’s attorney and expert witnesses. Paragraph (b)(5) protects communications
between the party’s attorney and any witness required to provide disclosures
under paragraph (a)(4), regardless of the form of the communications, except to
the extent that the communications:
(b)(7)(B)(i) relate to compensation for the expert’s study or
testimony;
(b)(7)(B)(ii) identify facts or
data that the party’s attorney provided and that the expert considered in
forming the opinions to be expressed; or
(b)(7)(B)(iii) identify
assumptions that the party’s attorney provided and that the expert relied on in
forming the opinions to be expressed.
(b)(7)(C) Expert employed only for trial
preparation. Ordinarily, a party
may not, by interrogatories or otherwise, 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. A party may do so only:
(b)(7)(C)(i) as provided in Rule 35(b); or
(b)(7)(C)(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.
(b)(8) Claims of privilege or protection of
trial preparation materials.
(b)(8)(A) Information withheld. If a party withholds discoverable
information by claiming that it is privileged or prepared in anticipation of
litigation or for trial, the party shall make the claim expressly and shall
describe the nature of the documents, communications, or things not produced in
a manner that, without revealing the information itself, will enable other
parties to evaluate the claim.
(b)(8)(B) Information produced. If a party produces information that the
party claims is privileged or prepared in anticipation of litigation or for
trial, the producing party may notify any receiving party 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 a
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.
(c) Methods,
sequence and timing of discovery; tiers; limits on standard discovery;
extraordinary discovery.
(c)(1) Methods of discovery. Parties may obtain discovery by one or more
of the following methods: depositions upon oral examination or written
questions; written interrogatories; production of documents or things or
permission to enter upon land or other property, for inspection and other
purposes; physical and mental examinations; requests for admission; and
subpoenas other than for a court hearing or trial.
(c)(2) Sequence and timing of discovery. Methods of discovery may be used in any
sequence, and the fact that a party is conducting discovery shall not delay any
other party's discovery. Except for cases exempt under paragraph (a)(3), a
party may not seek discovery from any source before that party’s initial
disclosure obligations are satisfied.
(c)(3) Definition of tiers for standard
discovery. Actions claiming
$50,000 or less in damages are permitted standard discovery as described for
Tier 1. Actions claiming more than $50,000 and less than $300,000 in damages
are permitted standard discovery as described for Tier 2. Actions claiming
$300,000 or more in damages are permitted standard discovery as described for
Tier 3. Absent an accompanying damage claim for more than $300,000, actions
claiming non-monetary relief are permitted standard discovery as described for
Tier 2.
(c)(4) Definition of damages. For purposes of determining standard
discovery, the amount of damages includes the total of all monetary damages
sought (without duplication for alternative theories) by all parties in all
claims for relief in the original pleadings.
(c)(5) Limits on standard fact discovery. Standard fact discovery per side
(plaintiffs collectively, defendants collectively, and third-party defendants
collectively) in each tier is as follows. The days to complete standard fact
discovery are calculated from the date the first defendant’s first disclosure
is due and do not include expert discovery under paragraphs(a)(4)(C) and (D).
|
Tier |
Amount of Damages |
Total Fact Deposition
Hours |
Rule 33 Interrogatories
including all discrete subparts |
Rule 34 Requests for
Production |
Rule 36 Requests for
Admission |
Days to Complete Standard
Fact Discovery |
|
1 |
$50,000
or less |
3 |
0 |
5 |
5 |
120 |
|
2 |
More
than $50,000 and less than $300,000 or non-monetary relief |
15 |
10 |
10 |
10 |
180 |
|
3 |
$300,000
or more |
30 |
20 |
20 |
20 |
210 |
(c)(6) Extraordinary discovery. To obtain discovery beyond the limits
established in paragraph (c)(5), a party shall file:
(c)(6)(A) before the close of
standard discovery and after reaching the limits of standard discovery imposed
by these rules, a stipulated statement that extraordinary discovery is
necessary and proportional under paragraph (b)(2) and that each party has
reviewed and approved a discovery budget; or
(c)(6)(B) before the close of
standard discovery and after reaching the limits of standard discovery imposed
by these rules, a motion for extraordinary discovery setting forth the reasons
why the extraordinary discovery is necessary and proportional under paragraph
(b)(2) and certifying that the party has reviewed and approved a discovery budget
and certifying that the party has in good faith conferred or attempted to
confer with the other party in an effort to achieve a stipulation.
(d) Requirements
for disclosure or response; disclosure or response by an organization; failure
to disclose; initial and supplemental disclosures and responses.
(d)(1) A party shall make
disclosures and responses to discovery based on the information then known or
reasonably available to the party.
(d)(2) If the party providing
disclosure or responding to discovery is a corporation, partnership,
association, or governmental agency, the party shall act through one or more
officers, directors, managing agents, or other persons, who shall make
disclosures and responses to discovery based on the information then known or
reasonably available to the party.
(d)(3) A party is not excused
from making disclosures or responses because the party has not completed
investigating the case or because the party challenges the sufficiency of
another party's disclosures or responses or because another party has not made
disclosures or responses.
(d)(4) If a party fails to
disclose or to supplement timely a disclosure or response to discovery, that
party may not use the undisclosed witness, document or material at any hearing
or trial unless the failure is harmless or the party shows good cause for the
failure.
(d)(5) If a party learns that a
disclosure or response is incomplete or incorrect in some important way, the
party must timely serve on the other parties the additional or correct
information if it has not been made known to the other parties. The
supplemental disclosure or response must state why the additional or correct
information was not previously provided.
(e) Signing
discovery requests, responses, and objections. Every disclosure, request for discovery,
response to a request for discovery and objection to a request for discovery
shall be in writing and signed by at least one attorney of record or by the
party if the party is not represented. The signature of the attorney or party
is a certification under Rule 11. If a request or response is not signed, the
receiving party does not need to take any action with respect to it. If a
certification is made in violation of the rule, the court, upon motion or upon
its own initiative, may take any action authorized by Rule 11 or Rule 37(e).
(f) Filing. Except as required by these rules or
ordered by the court, a party shall not file with the court a disclosure, a
request for discovery or a response to a request for discovery, but shall file
only the certificate of service stating that the disclosure, request for
discovery or response has been served on the other parties and the date of
service.