Rule 26. General provisions governing disclosure anddiscovery.
(a) Disclosure. This rule applies unless changed orsupplemented by a rule governing disclosure and discovery in a practice area.
(a)(1) Initialdisclosures.Except in cases exempt under paragraph (a)(3), a party shall, without waitingfor 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 informationsupporting its claims or defenses, unless solely for impeachment, identifyingthe subjects of the information; and
(a)(1)(A)(ii)each fact witness the party may call in its case-in-chief and, except for anadverse 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 partymay offer in its case-in-chief, except charts, summaries and demonstrativeexhibits that have not yet been prepared and must be disclosed in accordancewith paragraph (a)(5);
(a)(1)(C)a computation of any damages claimed and a copy of all discoverable documentsor evidentiary material on which such computation is based, including materialsabout 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 orall of a judgment or to indemnify or reimburse for payments made to satisfy thejudgment; and
(a)(1)(E)a copy of all documents to which a party refers in its pleadings.
(a)(2) Timing ofinitial disclosures.The disclosures required by paragraph (a)(1) shall be served on the otherparties:
(a)(2)(A)by the plaintiff within 14 days after filing of the first answer to thecomplaint; and
(a)(2)(B)by the defendant within 42 days after filing of the first answer to thecomplaint or within 28 days after that defendant?s appearance, whichever islater.
(a)(3)(A)Unless otherwise ordered by the court or agreed to by the parties, therequirements of paragraph (a)(1) do not apply to actions:
(a)(3)(A)(i) for judicial review of adjudicative proceedings or rulemaking proceedings of an administrative agency;
(a)(3)(A)(ii)governed by Rule65B or Rule 65C;
(a)(3)(A)(iii)to enforce an arbitration award;
(a)(3)(A)(iv)for water rights general adjudication under Title73, 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)(A) Disclosure ofexpert testimony.A party shall, without waiting for a discovery request, serve on the otherparties the following information regarding any person who may be used at trialto present evidence under Rule 702 of the UtahRules of Evidence and who is retained or specially employed to provide experttestimony in the case or whose duties as an employee of the party regularlyinvolve giving expert testimony: (i) the expert?sname and qualifications, including a list of all publications authored withinthe preceding 10 years, and a list of any other cases in which the expert hastestified as an expert at trial or by deposition within the preceding fouryears, (ii) a brief summary of the opinions to which the witness is expected totestify, (iii) all data and other information that will be relied upon by thewitness in forming those opinions, and (iv) the compensation to be paid for thewitness?s study and testimony.
(a)(4)(B) Limits onexpert discovery.Further discovery may be obtained from an expert witness either by depositionor by written report. A deposition shall not exceed four hours and the partytaking the deposition shall pay the expert?s reasonable hourly fees forattendance at the deposition. A report shall be signed by the expert and shallcontain a complete statement of all opinions the expert will offer at trial andthe basis and reasons for them. Such an expert may not testify in a party?scase-in-chief concerning any matter not fairly disclosed in the report. Theparty offering the expert shall pay the costs for the report.
(a)(4)(C) Timing forexpert discovery.
(a)(4)(C)(i) The party who bears the burden of proof on the issue forwhich expert testimony is offered shall serve on the other parties theinformation required by paragraph (a)(4)(A) within seven days after the closeof fact discovery. Within seven days thereafter, the party opposing the expertmay serve notice electing either a deposition of the expert pursuant toparagraph (a)(4)(B) and Rule30, ora 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 theelection is served on the other parties. If no election is served on the otherparties, 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 experttestimony is offered shall serve on the other parties the information requiredby paragraph (a)(4)(A) within seven days after the later of (A) the date onwhich the election under paragraph (a)(4)(C)(i) isdue, or (B) receipt of the written report or the taking of the expert?sdeposition pursuant to paragraph (a)(4)(C)(i). Withinseven days thereafter, the party opposing the expert may serve notice electingeither a deposition of the expert pursuant to paragraph (a)(4)(B) and Rule 30, or awritten report pursuant to paragraph (a)(4)(B). The deposition shall occur, orthe report shall be served on the other parties, within 28 days after theelection is served on the other parties. If no election is served on the otherparties, 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 designaterebuttal expert witnesses it shall serve on the other parties the informationrequired by paragraph (a)(4)(A) within seven days after the later of (A) thedate on which the election under paragraph (a)(4)(C)(ii) is due, or (B) receiptof the written report or the taking of the expert?s deposition pursuant toparagraph (a)(4)(C)(ii). Within seven days thereafter, the party opposing theexpert may serve notice electing either a deposition of the expert pursuant toparagraph (a)(4)(B) and Rule30, ora 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 theelection is served on the other parties. If no election is served on the otherparties, then no further discovery of the expert shall be permitted.
(a)(4)(D) Multipartyactions.In multiparty actions, all parties opposing the expert must agree on either areport or a deposition. If all parties opposing the expert do not agree, thenfurther discovery of the expert may be obtained only by deposition pursuant toparagraph (a)(4)(B) and Rule30.
(a)(4)(E) Summary ofnon-retained expert testimony. If a party intends to present evidence attrial under Rule702 of theUtah Rules of Evidence from any person other than an expert witness who isretained or specially employed to provide testimony in the case or a personwhose duties as an employee of the party regularly involve giving experttestimony, that party must serve on the other parties a written summary of thefacts and opinions to which the witness is expected to testify in accordancewith the deadlines set forth in paragraph (a)(4)(C). A deposition of such awitness may not exceed four hours.
(a)(5)(A)A party shall, without waiting for a discovery request, serve on the otherparties:
(a)(5)(A)(i) the name and, if not previously provided, the addressand telephone number of each witness, unless solely for impeachment, separatelyidentifying 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 transcriptof a deposition and a copy of the transcript with the proposed testimonydesignated; 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 partywill offer and those which the party may offer.
(a)(5)(B)Disclosure required by paragraph (a)(5) shall be served on the other parties atleast 28 days before trial. At least 14 days before trial, a party shall serveand file counter designations of deposition testimony, objections and groundsfor the objections to the use of a deposition and to the admissibility ofexhibits. Other than objections under Rules 402 and 403 of the UtahRules of Evidence, objections not listed are waived unless excused by the courtfor good cause.
(b) Discovery scope.
(b)(1) In general. Parties may discoverany matter, not privileged, which is relevant to the claim or defense of anyparty if the discovery satisfies the standards of proportionality set forthbelow. Privileged matters that are not discoverable or admissible in anyproceeding of any kind or character include all information in any formprovided during and created specifically as part of a request for aninvestigation, the investigation, findings, or conclusions of peer review, carereview, or quality assurance processes of any organization of health careproviders as defined in the UtahHealth Care Malpractice Act for the purpose of evaluating care provided toreduce morbidity and mortality or to improve the quality of medical care, orfor the purpose of peer review of the ethics, competence, or professionalconduct of any health care provider.
(b)(2) Proportionality. Discovery anddiscovery requests are proportional if:
(b)(2)(A)the discovery is reasonable, considering the needs of the case, the amount incontroversy, the complexity of the case, the parties' resources, the importanceof 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 furtherthe 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 theinformation by discovery or otherwise, taking into account the parties?relative access to the information.
(b)(3) Burden. The party seekingdiscovery always has the burden of showing proportionality and relevance. Toensure proportionality, the court may enter orders under Rule 37.
(b)(4) Electronicallystored information.A party claiming that electronically stored information is not reasonablyaccessible because of undue burden or cost shall describe the source of theelectronically stored information, the nature and extent of the burden, thenature of the information not provided, and any other information that willenable other parties to evaluate the claim.
(b)(5) Trialpreparation materials. A party may obtain otherwise discoverable documents andtangible things prepared in anticipation of litigation or for trial by or for anotherparty or by or for that other party's representative (including the party?sattorney, consultant, surety, indemnitor, insurer, oragent) only upon a showing that the party seeking discovery has substantialneed of the materials and that the party is unable without undue hardship toobtain substantially equivalent materials by other means. In ordering discoveryof such materials, the court shall protect against disclosure of the mentalimpressions, conclusions, opinions, or legal theories of an attorney or otherrepresentative of a party.
(b)(6) Statementpreviously made about the action. A party may obtain without the showingrequired in paragraph (b)(5) a statement concerning the action or its subjectmatter previously made by that party. Upon request, a person not a party mayobtain without the required showing a statement about the action or its subjectmatter previously made by that person. If the request is refused, the personmay move for a court order under Rule 37. Astatement previously made is (A) a written statement signed or approved by theperson making it, or (B) a stenographic, mechanical, electronic, or otherrecording, or a transcription thereof, which is a substantially verbatimrecital of an oral statement by the person making it and contemporaneouslyrecorded.
(b)(7) Trialpreparation; 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 andexpert witnesses.Paragraph (b)(5) protects communications between the party?s attorney and anywitness required to provide disclosures under paragraph (a)(4), regardless ofthe 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 expertconsidered in forming the opinions to be expressed; or
(b)(7)(B)(iii)identify assumptions that the party?s attorney provided and that the expertrelied on in forming the opinions to be expressed.
(b)(7)(C) Expertemployed only for trial preparation. Ordinarily, a party may not, byinterrogatories or otherwise, discover facts known or opinions held by anexpert who has been retained or specially employed by another party inanticipation of litigation or to prepare for trial and who is not expected tobe 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 theparty to obtain facts or opinions on the same subject by other means.
(b)(8) Claims ofprivilege or protection of trial preparation materials.
(b)(8)(A) Informationwithheld.If a party withholds discoverable information by claiming that it is privilegedor prepared in anticipation of litigation or for trial, the party shall makethe claim expressly and shall describe the nature of the documents, communications,or things not produced in a manner that, without revealing the informationitself, will enable other parties to evaluate the claim.
(b)(8)(B) Informationproduced.If a party produces information that the party claims is privileged or preparedin anticipation of litigation or for trial, the producing party may notify anyreceiving party of the claim and the basis for it. After being notified, areceiving party must promptly return, sequester, or destroy the specifiedinformation and any copies it has and may not use or disclose the informationuntil the claim is resolved. A receiving party may promptly present theinformation to the court under seal for a determination of the claim. If thereceiving party disclosed the information before being notified, it must takereasonable steps to retrieve it. The producing party must preserve theinformation 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 obtaindiscovery by one or more of the following methods: depositions upon oralexamination or written questions; written interrogatories; production ofdocuments or things or permission to enter upon land or other property, forinspection and other purposes; physical and mental examinations; requests foradmission; and subpoenas other than for a court hearing or trial.
(c)(2) Sequence andtiming of discovery.Methods of discovery may be used in any sequence, and the fact that a party isconducting discovery shall not delay any other party's discovery. Except forcases exempt under paragraph (a)(3), a party may not seek discovery from anysource before that party?s initial disclosure obligations are satisfied.
(c)(3) Definition oftiers for standard discovery. Actions claiming $50,000 or less in damagesare permitted standard discovery as described for Tier 1. Actions claiming morethan $50,000 and less than $300,000 in damages are permitted standard discoveryas described for Tier 2. Actions claiming $300,000 or more in damages arepermitted standard discovery as described for Tier 3. Absent an accompanyingdamage claim for more than $300,000, actions claiming non-monetary relief arepermitted standard discovery as described for Tier 2.
(c)(4) Definition ofdamages.For purposes of determining standard discovery, the amount of damages includesthe total of all monetary damages sought (without duplication for alternativetheories) by all parties in all claims for relief in the original pleadings.
(c)(5) Limits onstandard fact discovery. Standard fact discovery per side (plaintiffs collectively,defendants collectively, and third-party defendants collectively) in each tieris as follows. The days to complete standard fact discovery are calculated fromthe date the first defendant?s first disclosure is due and do not includeexpert discovery under paragraphs(a)(4)(C) and (D).
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
$50,000 or less
More than $50,000 and less than $300,000 or non-monetary relief
$300,000 or more
(c)(6) Extraordinarydiscovery.To obtain discovery beyond the limits established in paragraph (c)(5), a partyshall file:
(c)(6)(A)before the close of standard discovery and after reaching the limits ofstandard discovery imposed by these rules, a stipulated statement thatextraordinary 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 ofstandard discovery imposed by these rules, a request for extraordinarydiscovery under Rule37(a).
(d) Requirements for disclosure or response; disclosure or responseby an organization; failure to disclose; initial and supplemental disclosuresand responses.
(d)(1)A party shall make disclosures and responses to discovery based on theinformation 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 throughone or more officers, directors, managing agents, or other persons, who shallmake disclosures and responses to discovery based on the information then knownor reasonably available to the party.
(d)(3)A party is not excused from making disclosures or responses because the partyhas not completed investigating the case or because the party challenges thesufficiency of another party's disclosures or responses or because anotherparty has not made disclosures or responses.
(d)(4)If a party fails to disclose or to supplement timely a disclosure or responseto discovery, that party may not use the undisclosed witness, document ormaterial at any hearing or trial unless the failure is harmless or the partyshows good cause for the failure.
(d)(5)If a party learns that a disclosure or response is incomplete or incorrect insome important way, the party must timely serve on the other parties theadditional or correct information if it has not been made known to the otherparties. The supplemental disclosure or response must state why the additionalor 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 arequest for discovery shall be in writing and signed by at least one attorneyof record or by the party if the party is not represented. The signature of theattorney or party is a certification under Rule 11. If arequest or response is not signed, the receiving party does not need to takeany action with respect to it. If a certification is made in violation of therule, the court, upon motion or upon its own initiative, may take any actionauthorized by Rule11 orRule 37(b).
(f) Filing. Except as required by these rules or orderedby the court, a party shall not file with the court a disclosure, a request fordiscovery or a response to a request for discovery, but shall file only thecertificate of service stating that the disclosure, request for discovery orresponse has been served on the other parties and the date of service.