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Rule 26.General provisions governing discovery.

(a) Required disclosures; Discovery methods.

(a)(1) Initial disclosures. Except in casesexempt under subdivision (a)(2) and except as otherwisestipulated or directed by order, a party shall, without awaiting a discoveryrequest, provide to other parties:

(a)(1)(A) the nameand, if known, the address and telephone number of each individual likely tohave discoverable information supporting its claims or defenses, unless solelyfor impeachment, identifying the subjects of the information;

(a)(1)(B) a copy of, or a description bycategory and location of, all discoverable documents, data compilations,electronically stored information, and tangible things in the possession,custody, or control of the party supporting its claims or defenses, unlesssolely for impeachment;

(a)(1)(C) a computation of any category ofdamages claimed by the disclosing party, making available for inspection and copyingas under Rule 34 all discoverable documents or other evidentiary material onwhich such computation is based, including materials bearing on the nature andextent of injuries suffered; and

(a)(1)(D) forinspection and copying as under Rule 34 any insurance agreement under which anyperson carrying on an insurance business may be liable to satisfy part or allof a judgment which may be entered in the case or to indemnify or reimburse forpayments made to satisfy the judgment.

Unless otherwise stipulated by the partiesor ordered by the court, the disclosures required by subdivision (a)(1) shall be made within 14 days after the meeting of theparties under subdivision (f). Unless otherwise stipulated by the parties orordered by the court, a party joined after the meeting of the parties shallmake these disclosures within 30 days after being served. A party shall makeinitial disclosures based on the information then reasonably available and isnot excused from making disclosures because the party has not fully completedthe investigation of the case or because the party challenges the sufficiencyof another party's disclosures or because another party has not madedisclosures.

(a)(2) Exemptions.

(a)(2)(A) The requirements of subdivision (a)(1) and subdivision (f) do not apply to actions:

(a)(2)(A)(i) based on contract in which the amount demanded in thepleadings is $20,000 or less;

(a)(2)(A)(ii) forjudicial review of adjudicative proceedings or rule making proceedings of anadministrative agency;

(a)(2)(A)(iii) governedby Rule 65B or Rule 65C;

(a)(2)(A)(iv) to enforce an arbitrationaward;

(a)(2)(A)(v) forwater rights general adjudication under Title 73, Chapter 4; and

(a)(2)(A)(vi) inwhich any party not admitted to practice law in Utah is not represented bycounsel.

(a)(2)(B) In an exempt action, the matterssubject to disclosure under subpart (a)(1) are subjectto discovery under subpart (b).

(a)(3) Disclosure of expert testimony.

(a)(3)(A) A party shall disclose to otherparties the identity of any person who may be used at trial to present evidenceunder Rules 702, 703, or 705 of the Utah Rules of Evidence.

(a)(3)(B) Unless otherwise stipulated by theparties or ordered by the court, this disclosure shall, with respect to awitness who is retained or specially employed to provide expert testimony inthe case or whose duties as an employee of the party regularly involve givingexpert testimony, be accompanied by a written report prepared and signed by thewitness or party. The report shall contain the subject matter on which theexpert is expected to testify; the substance of the facts and opinions to whichthe expert is expected to testify; a summary of the grounds for each opinion;the qualifications of the witness, including a list of all publicationsauthored by the witness within the preceding ten years; the compensation to bepaid for the study and testimony; and a listing of any other cases in which thewitness has testified as an expert at trial or by deposition within thepreceding four years.

(a)(3)(C) Unless otherwise stipulated by theparties or ordered by the court, the disclosures required by subdivision (a)(3) shall be made within 30 days after the expiration offact discovery as provided by subdivision (d) or, if the evidence is intendedsolely to contradict or rebut evidence on the same subject matter identified byanother party under paragraph (3)(B), within 60 days after the disclosure madeby the other party.

(a)(4) Pretrial disclosures. A party shallprovide to other parties the following information regarding the evidence thatit may present at trial other than solely for impeachment:

(a)(4)(A) the name and, if not previouslyprovided, the address and telephone number of each witness, separatelyidentifying witnesses the party expects to present and witnesses the party maycall if the need arises;

(a)(4)(B) the designation of witnesses whosetestimony is expected to be presented by means of a deposition and, if nottaken stenographically, a transcript of the pertinentportions of the deposition testimony; and

(a)(4)(C) anappropriate identification of each document or other exhibit, includingsummaries of other evidence, separately identifying those which the partyexpects to offer and those which the party may offer if the need arises.

Unless otherwise stipulated by the partiesor ordered by the court, the disclosures required by subdivision (a)(4) shall be made at least 30 days before trial. Within 14days thereafter, unless a different time is specified by the court, a party mayserve and file a list disclosing (i) any objectionsto the use under Rule 32(a) of a deposition designated by another party undersubparagraph (B) and (ii) any objection, together with the grounds therefor, that may be made to the admissibility ofmaterials identified under subparagraph (C). Objections not so disclosed, otherthan objections under Rules 402 and 403 of the Utah Rules of Evidence, shall bedeemed waived unless excused by the court for good cause shown.

(a)(5) Form of disclosures. Unless otherwisestipulated by the parties or ordered by the court, all disclosures underparagraphs (1), (3) and (4) shall be made in writing, signed and served.

(a)(6) Methods to discover additionalmatter. Parties may obtain discovery by one or more of the following methods:depositions upon oral examination or written questions; writteninterrogatories; production of documents or things or permission to enter uponland or other property, for inspection and other purposes; physical and mentalexaminations; and requests for admission.

(b) Discovery scope and limits. Unlessotherwise limited by order of the court in accordance with these rules, thescope of discovery is as follows:

(b)(1) In general. Parties may obtaindiscovery regarding any matter, not privileged, which is relevant to thesubject matter involved in the pending action, whether it relates to the claimor defense of the party seeking discovery or to the claim or defense of anyother party, including the existence, description, nature, custody, condition, andlocation of any books, documents, or other tangible things and the identity andlocation of persons having knowledge of any discoverable matter. It is notground for objection that the information sought will be inadmissible at thetrial if the information sought appears reasonably calculated to lead to thediscovery of admissible evidence.

(b)(2) A party need not provide discovery ofelectronically stored information from sources that the party identifies as notreasonably accessible because of undue burden or cost. The party shallexpressly make any claim that the source is not reasonably accessible,describing the source, the nature and extent of the burden, the nature of theinformation not provided, and any other information that will enable otherparties to assess the claim. On motion to compel discovery or for a protectiveorder, the party from whom discovery is sought must show that the informationis not reasonably accessible because of undue burden or cost. If that showingis made, the court may order discovery from such sources if the requestingparty shows good cause, considering the limitations of subsection (b)(3). The court may specify conditions for the discovery.

(b)(3) Limitations. The frequency or extentof use of the discovery methods set forth in Subdivision (a)(6)shall be limited by the court if it determines that:

(b)(3)(A) thediscovery sought is unreasonably cumulative or duplicative, or is obtainablefrom some other source that is more convenient, less burdensome, or lessexpensive;

(b)(3)(B) the partyseeking discovery has had ample opportunity by discovery in the action toobtain the information sought; or

(b)(3)(C) thediscovery is unduly burdensome or expensive, taking into account the needs ofthe case, the amount in controversy, limitations on the parties' resources, andthe importance of the issues at stake in the litigation. The court may act uponits own initiative after reasonable notice or pursuant to a motion underSubdivision (c).

(b)(4) Trial preparation: Materials. Subjectto the provisions of Subdivision (b)(5) of this rule, a party may obtaindiscovery of documents and tangible things otherwise discoverable underSubdivision (b)(1) of this rule and prepared in anticipation of litigation orfor trial by or for another party or by or for that other party'srepresentative (including the party?s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that theparty seeking discovery has substantial need of the materials in thepreparation of the case and that the party is unable without undue hardship toobtain the substantial equivalent of the materials by other means. In orderingdiscovery of such materials when the required showing has been made, the courtshall protect against disclosure of the mental impressions, conclusions,opinions, or legal theories of an attorney or other representative of a partyconcerning the litigation.

A party may obtain without the requiredshowing a statement concerning the action or its subject matter previously madeby that party. Upon request, a person not a party may obtain without therequired showing a statement concerning the action or its subject matterpreviously made by that person. If the request is refused, the person may movefor a court order. The provisions of Rule 37(a)(4)apply to the award of expenses incurred in relation to the motion. For purposesof this paragraph, a statement previously made is (A) a written statementsigned or otherwise adopted or approved by the person making it, or (B) astenographic, mechanical, electrical, or other recording, or a transcriptionthereof, which is a substantially verbatim recital of an oral statement by theperson making it and contemporaneously recorded.

(b)(5) Trial preparation: Experts.

(b)(5)(A) A party may depose any person whohas been identified as an expert whose opinions may be presented at trial. If areport is required under subdivision (a)(3)(B), anydeposition shall be conducted within 60 days after the report is provided.

(b)(5)(B) A party may discover facts knownor opinions held by an expert who has been retained or specially employed byanother party in anticipation of litigation or preparation for trial and who isnot expected to be called as a witness at trial, only as provided in Rule 35(b)or upon a showing of exceptional circumstances under which it is impracticablefor the party seeking discovery to obtain facts or opinions on the same subjectby other means.

(b)(5)(C) Unless manifest injustice wouldresult,

(b)(5)(C)(i) Thecourt shall require that the party seeking discovery pay the expert areasonable fee for time spent in responding to discovery under Subdivision(b)(5) of this rule; and

(b)(5)(C)(ii) With respect to discoveryobtained under Subdivision (b)(5)(A) of this rule thecourt may require, and with respect to discovery obtained under Subdivision(b)(5)(B) of this rule the court shall require, the party seeking discovery topay the other party a fair portion of the fees and expenses reasonably incurredby the latter party in obtaining facts and opinions from the expert.

(b)(6) Claims of Privilege or Protection ofTrial Preparation Materials.

(b)(6)(A) Information withheld. When a partywithholds information otherwise discoverable under these rules by claiming thatit is privileged or subject to protection as trial preparation material, theparty shall make the claim expressly and shall describe the nature of thedocuments, communications, or things not produced or disclosed in a manner that,without revealing information itself privileged or protected, will enable otherparties to assess the applicability of the privilege or protection.

(b)(6)(B) Information produced. Ifinformation is produced in discovery that is subject to a claim of privilege orof protection as trial-preparation material, the party making the claim maynotify any party that received the information of the claim and the basis forit. After being notified, a party must promptly return, sequester, or destroythe specified information and any copies it has and may not use or disclose theinformation until the claim is resolved. A receiving party may promptly presentthe information to the court under seal for a determination of the claim. Ifthe receiving party disclosed the information before being notified, it musttake reasonable steps to retrieve it. The producing party must preserve theinformation until the claim is resolved.

(c) Protective orders. Upon motion by aparty or by the person from whom discovery is sought, accompanied by acertification that the movant has in good faithconferred or attempted to confer with other affected parties in an effort toresolve the dispute without court action, and for good cause shown, the courtin which the action is pending or alternatively, on matters relating to adeposition, the court in the district where the deposition is to be taken maymake any order which justice requires to protect a party or person fromannoyance, embarrassment, oppression, or undue burden or expense, including oneor more of the following:

(c)(1) that thediscovery not be had;

(c)(2) that thediscovery may be had only on specified terms and conditions, including adesignation of the time or place;

(c)(3) that thediscovery may be had only by a method of discovery other than that selected bythe party seeking discovery;

(c)(4) that certainmatters not be inquired into, or that the scope of the discovery be limited tocertain matters;

(c)(5) thatdiscovery be conducted with no one present except persons designated by thecourt;

(c)(6) that adeposition after being sealed be opened only by order of the court;

(c)(7) that a tradesecret or other confidential research, development, or commercial informationnot be disclosed or be disclosed only in a designated way;

(c)(8) that theparties simultaneously file specified documents or information enclosed insealed envelopes to be opened as directed by the court.

If the motion for a protective order isdenied in whole or in part, the court may, on such terms and conditions as arejust, order that any party or person provide or permit discovery. Theprovisions of Rule 37(a)(4) apply to the award ofexpenses incurred in relation to the motion.

(d) Sequence and timing of discovery. Exceptfor cases exempt under subdivision (a)(2), except asauthorized under these rules, or unless otherwise stipulated by the parties orordered by the court, a party may not seek discovery from any source before theparties have met and conferred as required by subdivision (f). Unless otherwisestipulated by the parties or ordered by the court, fact discovery shall becompleted within 240 days after the first answer is filed. Unless the courtupon motion, for the convenience of parties and witnesses and in the interestsof justice, orders otherwise, methods of discovery may be used in any sequenceand the fact that a party is conducting discovery, whether by deposition orotherwise, shall not operate to delay any other party's discovery.

(e) Supplementation of responses. A partywho has made a disclosure under subdivision (a) or responded to a request fordiscovery with a response is under a duty to supplement the disclosure orresponse to include information thereafter acquired if ordered by the court orin the following circumstances:

(e)(1) A party is under a duty to supplementat appropriate intervals disclosures under subdivision (a) if the party learnsthat in some material respect the information disclosed is incomplete orincorrect and if the additional or corrective information has not otherwisebeen made known to the other parties during the discovery process or inwriting. With respect to testimony of an expert from whom a report is requiredunder subdivision (a)(3)(B) the duty extends both toinformation contained in the report and to information provided through adeposition of the expert.

(e)(2) A party is under a duty seasonably toamend a prior response to an interrogatory, request for production, or request foradmission if the party learns that the response is in some material respectincomplete or incorrect and if the additional or corrective information has nototherwise been made known to the other parties during the discovery process orin writing.

(f) Discovery and scheduling conference.

The following applies to all cases notexempt under subdivision (a)(2), except as otherwisestipulated or directed by order.

(f)(1) The parties shall, as soon aspracticable after commencement of the action, meet in person or by telephone todiscuss the nature and basis of their claims and defenses, to discuss thepossibilities for settlement of the action, to make or arrange for thedisclosures required by subdivision (a)(1), to discussany issues relating to preserving discoverable information and to develop astipulated discovery plan. Plaintiff?s counsel shall schedule the meeting. Theattorneys of record shall be present at the meeting and shall attempt in goodfaith to agree upon the discovery plan.

(f)(2) The plan shall include:

(f)(2)(A) whatchanges should be made in the timing, form, or requirement for disclosuresunder subdivision (a), including a statement as to when disclosures undersubdivision (a)(1) were made or will be made;

(f)(2)(B) the subjects on which discoverymay be needed, when discovery should be completed, whether discovery should beconducted in phases and whether discovery should be limited to particularissues;

(f)(2)(C) anyissues relating to preservation, disclosure or discovery of electronicallystored information, including the form or forms in which it should be produced;

(f)(2)(D) anyissues relating to claims of privilege or of protection as trial-preparationmaterial, including - if the parties agree on a procedure to assert such claimsafter production - whether to ask the court to include their agreement in anorder;

(f)(2)(E) whatchanges should be made in the limitations on discovery imposed under theserules, and what other limitations should be imposed;

(f)(2)(F) thedeadline for filing the description of the factual and legal basis forallocating fault to a non-party and the identity of the non-party; and

(f)(2)(G) any otherorders that should be entered by the court.

(f)(3) Plaintiff?s counsel shall submit tothe court within 14 days after the meeting and in any event no more than 60days after the first answer is filed a proposed form of order in conformitywith the parties? stipulated discovery plan. The proposed form of order shallalso include each of the subjects listed in Rule 16(b)(1)-(8), except that thedate or dates for pretrial conferences, final pretrial conference and trialshall be scheduled with the court or may be deferred until the close ofdiscovery. If the parties are unable to agree to the terms of a discovery planor any part thereof, the plaintiff shall and any party may move the court forentry of a discovery order on any topic on which the parties are unable toagree. Unless otherwise ordered by the court, the presumptions established bythese rules shall govern any subject not included within the parties?stipulated discovery plan.

(f)(4) Any party may request a schedulingand management conference or order under Rule 16(b).

(f)(5) A party joined after the meeting ofthe parties is bound by the stipulated discovery plan and discovery order,unless the court orders on stipulation or motion a modification of thediscovery plan and order. The stipulation or motion shall be filed within areasonable time after joinder.

(g) Signing of discovery requests,responses, and objections. Every request for discovery or response or objectionthereto made by a party shall be signed by at least one attorney of record orby the party if the party is not represented, whose address shall be stated.The signature of the attorney or party constitutes a certification that theperson has read the request, response, or objection and that to the best of theperson?s knowledge, information, and belief formed after reasonable inquiry itis: (1) consistent with these rules and warranted by existing law or a goodfaith argument for the extension, modification, or reversal of existing law;(2) not interposed for any improper purpose, such as to harass or to causeunnecessary delay or needless increase in the cost of litigation; and (3) not unreasonableor unduly burdensome or expensive, given the needs of the case, the discoveryalready had in the case, the amount in controversy, and the importance of theissues at stake in the litigation. If a request, response, or objection is notsigned, it shall be stricken unless it is signed promptly after the omission iscalled to the attention of the party making the request, response, orobjection, and a party shall not be obligated to take any action with respectto it until it is signed.

If a certification is made in violation ofthe rule, the court, upon motion or upon its own initiative, shall impose uponthe person who made the certification, the party on whose behalf the request,response, or objection is made, or both, an appropriate sanction, which mayinclude an order to pay the amount of the reasonable expenses incurred becauseof the violation, including a reasonable attorney fee.

(h) Deposition where action pending inanother state. Any party to an action or proceeding in another state may takethe deposition of any person within this state, in the same manner and subjectto the same conditions and limitations as if such action or proceeding werepending in this state, provided that in order to obtain a subpoena the noticeof the taking of such deposition shall be filed with the clerk of the court ofthe county in which the person whose deposition is to be taken resides or is tobe served, and provided further that all matters arising during the taking ofsuch deposition which by the rules are required to be submitted to the courtshall be submitted to the court in the county where the deposition is beingtaken.

(i) Filing.

(i)(1)Unless otherwise ordered by the court, a party shall not file disclosures orrequests for discovery with the court, but shall file only the originalcertificate of service stating that the disclosures or requests for discoveryhave been served on the other parties and the date of service. Unless otherwiseordered by the court, a party shall not file a response to a request fordiscovery with the court, but shall file only the original certificate ofservice stating that the response has been served on the other parties and thedate of service. Except as provided in Rule 30(f)(1),Rule 32 or unless otherwise ordered by the court, depositions shall not befiled with the court.

(i)(2)A party filing a motion under subdivision (c) or a motion under Rule 37(a)shall attach to the motion a copy of the request for discovery or the responsewhich is at issue.

AdvisoryCommittee Notes