Rule 26. Duty to Disclose; General
Provisions Governing Discovery
. . .
(b) Discovery Scope and Limits.
(1) Scope in General. Unless otherwise limited
by court order, the scope of discovery is as follows: Parties may
obtain discovery regarding any
nonprivileged matter that is relevant to any party’s
claim or defense — including the existence, description, nature,
custody, condition,
and location of any documents or other tangible
things and the identity and location of persons who know of any
discoverable matter. For good
cause, the court may order discovery of any matter
relevant to the subject matter involved in the action. Relevant
information need not be
admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.
All discovery is subject to
the limitations imposed by Rule 26(b)(2)(C).
(2) Limitations on Frequency and Extent.
. . .
(C) When Required. On
motion or on its own, the court must limit the frequency or extent of
discovery otherwise allowed by these
rules or by local rule if it
determines that:
(i) the discovery
sought is unreasonably cumulative or duplicative, or can be obtained
from some other source that is
more convenient,
less burdensome, or less expensive;
(ii) the party
seeking discovery has had ample opportunity to obtain the information
by discovery in the action; or
(iii) the
burden or expense of the proposed discovery outweighs its likely
benefit, considering the needs of the case, the
amount in
controversy, the parties’ resources, the importance of the issues at
stake in the action, and the
importance of
the discovery in resolving the issues.
(3) Trial Preparation: Materials.
(A) Documents and Tangible
Things. Ordinarily, a party may not discover documents and
tangible things that are prepared in anticipation of litigation or for
trial by or for another party or its
representative (including the other party’s attorney, consultant,
surety, indemnitor, insurer, or agent). But, subject to Rule
26(b)(4), those materials may be
discovered if:
(i) they are
otherwise discoverable under Rule 26(b)(1); and
(ii) the party
shows that it has substantial need for the materials to prepare its
case and cannot, without undue
hardship,
obtain their substantial equivalent by other means.
(B) Protection Against
Disclosure. If the court orders discovery of those materials, it
must protect against disclosure of the mental
impressions, conclusions,
opinions, or legal theories of a party’s attorney or other
representative concerning the litigation.
(C) Previous Statement. Any
party or other person may, on request and without the required showing,
obtain the person’s own
previous statement about the
action or its subject matter. If the request is refused, the person may
move for a court order, and Rule
37(a)(5) applies to the award of
expenses. A previous statement is either:
(i) a written
statement that the person has signed or otherwise adopted or approved;
or
(ii) a
contemporaneous stenographic, mechanical, electrical, or other
recording — or a transcription of it —
that recites
substantially verbatim the person’s oral statement.
(4) Trial Preparation: Experts.
(A) Expert Who May Testify.
A party may depose any person who has been identified as an expert
whose opinions may be
presented at trial. If Rule
26(a)(2)(B) requires a report from the expert, the deposition may be
conducted only after the
report is provided.
(B) Expert Employed Only for
Trial Preparation. Ordinarily, a party may not, by
interrogatories or deposition, 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. But a party may do so
only:
(i) as
provided in Rule 35(b); or
(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.
(C) Payment. Unless manifest
injustice would result, the court must require that the party seeking
discovery:
(i) pay the
expert a reasonable fee for time spent in responding to discovery under
Rule 26(b)(4)(A) or (B); and
(ii) for
discovery under (B), also pay the other party a fair portion of the
fees and expenses it reasonably incurred in
obtaining the
expert’s facts and opinions.
(5) Claiming Privilege or Protecting Trial-
Preparation Materials.
(A) Information Withheld.
When a party withholds information otherwise discoverable by claiming
that the information is privileged or subject to
protection as trial-preparation
material, the party must:
(i) expressly
make the claim; and
(ii) describe
the nature of the documents, communications, or tangible things not
produced or disclosed — and do so in a
manner that,
without revealing information itself privileged or protected, will
enable other parties to assess the claim.
. . .
(g) Signing Disclosures and Discovery Requests, Responses, and
Objections.
(1) Signature Required; Effect of Signature.
Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery
request, response, or
objection must be signed by at least one attorney of
record in the attorney’s own name — or by the party personally, if
unrepresented — and must
state the signer’s address, e-mail address, and
telephone number. By signing, an attorney or party certifies that to
the best of the person’s
knowledge, information, and belief formed after a
reasonable inquiry:
(A) with respect to a disclosure,
it is complete and correct as of the time it is made; and
(B) with respect to a discovery
request, response, or objection, it is:
(i) consistent
with these rules and warranted by existing law or by a nonfrivolous
argument for extending,
modifying, or
reversing existing law, or for establishing new law;
(ii) not
interposed for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly
increase the
cost of litigation; and
(iii) neither
unreasonable nor unduly burdensome or expensive, considering the needs
of the case, prior discovery in
the case, the
amount in controversy, and the importance of the issues at stake in the
action.
(2) Failure to Sign. Other parties have no
duty to act on an unsigned disclosure, request, response, or objection
until it is signed, and the court must
strike it unless a signature is promptly supplied
after the omission is called to the attorney’s or party’s attention.
(3) Sanction for Improper Certification. If a
certification violates this rule without substantial justification, the
court, on motion or
on its own, must impose an appropriate sanction on
the signer, the party on whose behalf the signer was acting, or both.
The sanction may
include an order to pay the reasonable expenses,
including attorney’s fees, caused by the violation.