Rule 26.
General provisions governing discovery.
(a) Required disclosures; Discovery methods.
(a)(1) Initial disclosures. Except in cases
exempt under subdivision (a)(2) and except as otherwise
stipulated or directed by order, a party shall, without awaiting a discovery
request, provide to other parties:
(a)(1)(A) the name
and, if known, the address and telephone number of each individual likely to
have discoverable information supporting its claims or defenses, unless solely
for impeachment, identifying the subjects of the information;
(a)(1)(B) a copy of, or a description by
category 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, unless
solely for impeachment;
(a)(1)(C) a computation of any category of
damages claimed by the disclosing party, making available for inspection and copying
as under Rule 34 all discoverable documents or other evidentiary material on
which such computation is based, including materials bearing on the nature and
extent of injuries suffered; and
(a)(1)(D) for
inspection and copying as under Rule 34 any insurance agreement under which any
person carrying on an insurance business may be liable to satisfy part or all
of a judgment which may be entered in the case or to indemnify or reimburse for
payments made to satisfy the judgment.
Unless otherwise stipulated by the parties
or ordered by the court, the disclosures required by subdivision (a)(1) shall be made within 14 days after the meeting of the
parties under subdivision (f). Unless otherwise stipulated by the parties or
ordered by the court, a party joined after the meeting of the parties shall
make these disclosures within 30 days after being served. A party shall make
initial disclosures based on the information then reasonably available and is
not excused from making disclosures because the party has not fully completed
the investigation of the case or because the party challenges the sufficiency
of another party's disclosures or because another party has not made
disclosures.
(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 the
pleadings is $20,000 or less;
(a)(2)(A)(ii) for
judicial review of adjudicative proceedings or rule making proceedings of an
administrative agency;
(a)(2)(A)(iii) governed
by Rule 65B or Rule 65C;
(a)(2)(A)(iv) to enforce an arbitration
award;
(a)(2)(A)(v) for
water rights general adjudication under Title 73, Chapter 4; and
(a)(2)(A)(vi) in
which any party not admitted to practice law in Utah is not represented by
counsel.
(a)(2)(B) In an exempt action, the matters
subject to disclosure under subpart (a)(1) are subject
to discovery under subpart (b).
(a)(3) Disclosure of expert testimony.
(a)(3)(A) A party shall disclose to other
parties the identity of any person who may be used at trial to present evidence
under Rules 702, 703, or 705 of the Utah Rules of Evidence.
(a)(3)(B) Unless otherwise stipulated by the
parties or ordered by the court, this disclosure shall, with respect to a
witness 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, be accompanied by a written report prepared and signed by the
witness or party. The report shall contain 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; a summary of the grounds for each opinion;
the qualifications of the witness, including a list of all publications
authored by the witness within the preceding ten years; the compensation to be
paid for the study and testimony; and a listing of any other cases in which the
witness has testified as an expert at trial or by deposition within the
preceding four years.
(a)(3)(C) Unless otherwise stipulated by the
parties or ordered by the court, the disclosures required by subdivision (a)(3) shall be made within 30 days after the expiration of
fact discovery as provided by subdivision (d) or, if the evidence is intended
solely to contradict or rebut evidence on the same subject matter identified by
another party under paragraph (3)(B), within 60 days after the disclosure made
by the other party.
(a)(4) Pretrial disclosures. A party shall
provide to other parties the following information regarding the evidence that
it may present at trial other than solely for impeachment:
(a)(4)(A) the name and, if not previously
provided, the address and telephone number of each witness, separately
identifying witnesses the party expects to present and witnesses the party may
call if the need arises;
(a)(4)(B) the designation of witnesses whose
testimony is expected to be presented by means of a deposition and, if not
taken stenographically, a transcript of the pertinent
portions of the deposition testimony; and
(a)(4)(C) an
appropriate identification of each document or other exhibit, including
summaries of other evidence, separately identifying those which the party
expects to offer and those which the party may offer if the need arises.
Unless otherwise stipulated by the parties
or ordered by the court, the disclosures required by subdivision (a)(4) shall be made at least 30 days before trial. Within 14
days thereafter, unless a different time is specified by the court, a party may
serve and file a list disclosing (i) any objections
to the use under Rule 32(a) of a deposition designated by another party under
subparagraph (B) and (ii) any objection, together with the grounds therefor, that may be made to the admissibility of
materials identified under subparagraph (C). Objections not so disclosed, other
than objections under Rules 402 and 403 of the Utah Rules of Evidence, shall be
deemed waived unless excused by the court for good cause shown.
(a)(5) Form of disclosures. Unless otherwise
stipulated by the parties or ordered by the court, all disclosures under
paragraphs (1), (3) and (4) shall be made in writing, signed and served.
(a)(6) Methods to discover additional
matter. 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; and requests for admission.
(b) Discovery scope and limits. Unless
otherwise limited by order of the court in accordance with these rules, the
scope of discovery is as follows:
(b)(1) In general. Parties may obtain
discovery regarding any matter, not privileged, which is relevant to the
subject matter involved in the pending action, whether it relates to the claim
or defense of the party seeking discovery or to the claim or defense of any
other party, including the existence, description, nature, custody, condition, and
location of any books, documents, or other tangible things and the identity and
location of persons having knowledge of any discoverable matter. It is not
ground for objection that the information sought will be inadmissible at the
trial if the information sought appears reasonably calculated to lead to the
discovery of admissible evidence.
(b)(2) 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. The party shall
expressly make any claim that the source is not reasonably accessible,
describing the source, the nature and extent of the burden, the nature of the
information not provided, and any other information that will enable other
parties to assess the claim. 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 order discovery from such sources if the requesting
party shows good cause, considering the limitations of subsection (b)(3). The court may specify conditions for the discovery.
(b)(3) Limitations. The frequency or extent
of use of the discovery methods set forth in Subdivision (a)(6)
shall be limited by the court if it determines that:
(b)(3)(A) the
discovery sought is unreasonably cumulative or duplicative, or is obtainable
from some other source that is more convenient, less burdensome, or less
expensive;
(b)(3)(B) the party
seeking discovery has had ample opportunity by discovery in the action to
obtain the information sought; or
(b)(3)(C) the
discovery is unduly burdensome or expensive, taking into account the needs of
the case, the amount in controversy, limitations on the parties' resources, and
the importance of the issues at stake in the litigation. The court may act upon
its own initiative after reasonable notice or pursuant to a motion under
Subdivision (c).
(b)(4) Trial preparation: Materials. Subject
to the provisions of Subdivision (b)(5) of this rule, a party may obtain
discovery of documents and tangible things otherwise discoverable under
Subdivision (b)(1) of this rule and 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 in the
preparation of the case and that the party is unable without undue hardship to
obtain the substantial equivalent of the materials by other means. In ordering
discovery of such materials when the required showing has been made, the court
shall protect against disclosure of the mental impressions, conclusions,
opinions, or legal theories of an attorney or other representative of a party
concerning the litigation.
A party may obtain without the required
showing 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 concerning the action or its subject matter
previously made by that person. If the request is refused, the person may move
for a court order. The provisions of Rule 37(a)(4)
apply to the award of expenses incurred in relation to the motion. For purposes
of this paragraph, a statement previously made is (A) a written statement
signed or otherwise adopted or approved by the person making it, or (B) a
stenographic, mechanical, electrical, 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)(5) Trial preparation: Experts.
(b)(5)(A) A party may depose any person who
has been identified as an expert whose opinions may be presented at trial. If a
report is required under subdivision (a)(3)(B), any
deposition shall be conducted within 60 days after the report is provided.
(b)(5)(B) A party may discover facts known
or opinions held by an expert who has been retained or specially employed by
another party in anticipation of litigation or preparation for trial and who is
not 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 impracticable
for the party seeking discovery to obtain facts or opinions on the same subject
by other means.
(b)(5)(C) Unless manifest injustice would
result,
(b)(5)(C)(i) The
court shall require that the party seeking discovery pay the expert a
reasonable fee for time spent in responding to discovery under Subdivision
(b)(5) of this rule; and
(b)(5)(C)(ii) With respect to discovery
obtained under Subdivision (b)(5)(A) of this rule the
court may require, and with respect to discovery obtained under Subdivision
(b)(5)(B) of this rule the court shall require, the party seeking discovery to
pay the other party a fair portion of the fees and expenses reasonably incurred
by the latter party in obtaining facts and opinions from the expert.
(b)(6) Claims of Privilege or Protection of
Trial Preparation Materials.
(b)(6)(A) Information withheld. When a party
withholds information otherwise discoverable under these rules by claiming that
it is privileged or subject to protection as trial preparation material, the
party shall make the claim expressly and shall describe the nature of the
documents, communications, or things not produced or disclosed in a manner that,
without revealing information itself privileged or protected, will enable other
parties to assess the applicability of the privilege or protection.
(b)(6)(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 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) Protective orders. Upon motion by a
party or by the person from whom discovery is sought, accompanied by a
certification that the movant has in good faith
conferred or attempted to confer with other affected parties in an effort to
resolve the dispute without court action, and for good cause shown, the court
in which the action is pending or alternatively, on matters relating to a
deposition, the court in the district where the deposition is to be taken may
make any order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense, including one
or more of the following:
(c)(1) that the
discovery not be had;
(c)(2) that the
discovery may be had only on specified terms and conditions, including a
designation of the time or place;
(c)(3) that the
discovery may be had only by a method of discovery other than that selected by
the party seeking discovery;
(c)(4) that certain
matters not be inquired into, or that the scope of the discovery be limited to
certain matters;
(c)(5) that
discovery be conducted with no one present except persons designated by the
court;
(c)(6) that a
deposition after being sealed be opened only by order of the court;
(c)(7) that a trade
secret or other confidential research, development, or commercial information
not be disclosed or be disclosed only in a designated way;
(c)(8) that the
parties simultaneously file specified documents or information enclosed in
sealed envelopes to be opened as directed by the court.
If the motion for a protective order is
denied in whole or in part, the court may, on such terms and conditions as are
just, order that any party or person provide or permit discovery. The
provisions of Rule 37(a)(4) apply to the award of
expenses incurred in relation to the motion.
(d) Sequence and timing of discovery. Except
for cases exempt under subdivision (a)(2), except as
authorized under these rules, or unless otherwise stipulated by the parties or
ordered by the court, a party may not seek discovery from any source before the
parties have met and conferred as required by subdivision (f). Unless otherwise
stipulated by the parties or ordered by the court, fact discovery shall be
completed within 240 days after the first answer is filed. Unless the court
upon motion, for the convenience of parties and witnesses and in the interests
of justice, orders otherwise, methods of discovery may be used in any sequence
and the fact that a party is conducting discovery, whether by deposition or
otherwise, shall not operate to delay any other party's discovery.
(e) Supplementation of responses. A party
who has made a disclosure under subdivision (a) or responded to a request for
discovery with a response is under a duty to supplement the disclosure or
response to include information thereafter acquired if ordered by the court or
in the following circumstances:
(e)(1) A party is under a duty to supplement
at appropriate intervals disclosures under subdivision (a) if the party learns
that in some material respect the information disclosed is incomplete or
incorrect and if the additional or corrective information has not otherwise
been made known to the other parties during the discovery process or in
writing. With respect to testimony of an expert from whom a report is required
under subdivision (a)(3)(B) the duty extends both to
information contained in the report and to information provided through a
deposition of the expert.
(e)(2) A party is under a duty seasonably to
amend a prior response to an interrogatory, request for production, or request for
admission if the party learns that the response is in some material respect
incomplete or incorrect and if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process or
in writing.
(f) Discovery and scheduling conference.
The following applies to all cases not
exempt under subdivision (a)(2), except as otherwise
stipulated or directed by order.
(f)(1) The parties shall, as soon as
practicable after commencement of the action, meet in person or by telephone to
discuss the nature and basis of their claims and defenses, to discuss the
possibilities for settlement of the action, to make or arrange for the
disclosures required by subdivision (a)(1), to discuss
any issues relating to preserving discoverable information and to develop a
stipulated discovery plan. Plaintiff’s counsel shall schedule the meeting. The
attorneys of record shall be present at the meeting and shall attempt in good
faith to agree upon the discovery plan.
(f)(2) The plan shall include:
(f)(2)(A) what
changes should be made in the timing, form, or requirement for disclosures
under subdivision (a), including a statement as to when disclosures under
subdivision (a)(1) were made or will be made;
(f)(2)(B) the subjects on which discovery
may be needed, when discovery should be completed, whether discovery should be
conducted in phases and whether discovery should be limited to particular
issues;
(f)(2)(C) any
issues relating to preservation, disclosure or discovery of electronically
stored information, including the form or forms in which it should be produced;
(f)(2)(D) any
issues relating to claims of privilege or of protection as trial-preparation
material, including - if the parties agree on a procedure to assert such claims
after production - whether to ask the court to include their agreement in an
order;
(f)(2)(E) what
changes should be made in the limitations on discovery imposed under these
rules, and what other limitations should be imposed;
(f)(2)(F) the
deadline for filing the description of the factual and legal basis for
allocating fault to a non-party and the identity of the non-party; and
(f)(2)(G) any other
orders that should be entered by the court.
(f)(3) Plaintiff’s counsel shall submit to
the court within 14 days after the meeting and in any event no more than 60
days after the first answer is filed a proposed form of order in conformity
with the parties’ stipulated discovery plan. The proposed form of order shall
also include each of the subjects listed in Rule 16(b)(1)-(8), except that the
date or dates for pretrial conferences, final pretrial conference and trial
shall be scheduled with the court or may be deferred until the close of
discovery. If the parties are unable to agree to the terms of a discovery plan
or any part thereof, the plaintiff shall and any party may move the court for
entry of a discovery order on any topic on which the parties are unable to
agree. Unless otherwise ordered by the court, the presumptions established by
these rules shall govern any subject not included within the parties’
stipulated discovery plan.
(f)(4) Any party may request a scheduling
and management conference or order under Rule 16(b).
(f)(5) A party joined after the meeting of
the parties is bound by the stipulated discovery plan and discovery order,
unless the court orders on stipulation or motion a modification of the
discovery plan and order. The stipulation or motion shall be filed within a
reasonable time after joinder.
(g) Signing of discovery requests,
responses, and objections. Every request for discovery or response or objection
thereto made by a party shall be signed by at least one attorney of record or
by the party if the party is not represented, whose address shall be stated.
The signature of the attorney or party constitutes a certification that the
person has read the request, response, or objection and that to the best of the
person’s knowledge, information, and belief formed after reasonable inquiry it
is: (1) consistent with these rules and warranted by existing law or a good
faith argument for the extension, modification, or reversal of existing law;
(2) not interposed for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation; and (3) not unreasonable
or unduly burdensome or expensive, given the needs of the case, the discovery
already had in the case, the amount in controversy, and the importance of the
issues at stake in the litigation. If a request, response, or objection is not
signed, it shall be stricken unless it is signed promptly after the omission is
called to the attention of the party making the request, response, or
objection, and a party shall not be obligated to take any action with respect
to it until it is signed.
If a certification is made in violation of
the rule, the court, upon motion or upon its own initiative, shall impose upon
the person who made the certification, the party on whose behalf the request,
response, or objection is made, or both, an appropriate sanction, which may
include an order to pay the amount of the reasonable expenses incurred because
of the violation, including a reasonable attorney fee.
(h) Deposition where action pending in
another state. Any party to an action or proceeding in another state may take
the deposition of any person within this state, in the same manner and subject
to the same conditions and limitations as if such action or proceeding were
pending in this state, provided that in order to obtain a subpoena the notice
of the taking of such deposition shall be filed with the clerk of the court of
the county in which the person whose deposition is to be taken resides or is to
be served, and provided further that all matters arising during the taking of
such deposition which by the rules are required to be submitted to the court
shall be submitted to the court in the county where the deposition is being
taken.
(i) Filing.
(i)(1)
Unless otherwise ordered by the court, a party shall not file disclosures or
requests for discovery with the court, but shall file only the original
certificate of service stating that the disclosures or requests for discovery
have been served on the other parties and the date of service. Unless otherwise
ordered by the court, a party shall not file a response to a request for
discovery with the court, but shall file only the original certificate of
service stating that the response has been served on the other parties and the
date of service. Except as provided in Rule 30(f)(1),
Rule 32 or unless otherwise ordered by the court, depositions shall not be
filed 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 response
which is at issue.