Rule 26. Duty to Disclose; General Provisions Governing Discovery
(a)
Required Disclosures.
(1)
Initial Disclosure.
(A)
In General. Except as exempted by Rule
26
(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:
(i)
the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
(ii)
a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
(iii)
a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule
34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and
(iv)
for inspection and copying as under Rule
34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.
(B)
Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure:
(iii)
a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence;
(C)
Time for Initial Disclosures—In General. A party must make the initial disclosures at or within 14 days after the parties’ Rule
26
(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure.
(D)
Time for Initial Disclosures—For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule
26
(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order.
(E)
Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures.
(2)
Disclosure of Expert Testimony.
(A)
In General. In addition to the disclosures required by Rule
26
(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.
(B)
Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony. The report must contain:
(i)
a complete statement of all opinions the witness will express and the basis and reasons for them;
(iv)
the witness’s qualifications, including a list of all publications authored in the previous 10 years;
(3)
Pretrial Disclosures.
(A)
In General. In addition to the disclosures required by Rule
26
(a)(1) and (2), a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment:
(i)
the name and, if not previously provided, the address and telephone number of each witness—separately identifying those the party expects to present and those it may call if the need arises;
(B)
Time for Pretrial Disclosures; Objections. Unless the court orders otherwise, these disclosures must be made at least 30 days before trial. Within 14 days after they are made, unless the court sets a different time, a party may serve and promptly file a list of the following objections: any objections to the use under Rule 32(a) of a deposition designated by another party under Rule
26
(a)(3)(A)(ii); and any objection, together with the grounds for it, that may be made to the admissibility of materials identified under Rule
26
(a)(3)(A)(iii). An objection not so made—except for one under Federal Rule of Evidence 402 or 403—is waived unless excused by the court for good cause.
(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.
(A)
When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule
30. By order or local rule, the court may also limit the number of requests under Rule
36.
(B)
Specific Limitations on Electronically Stored Information. 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. 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 nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule
26
(b)(2)(C). The court may specify conditions for the discovery.
(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;
(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:
(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:
(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:
(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:
(B)
Information Produced. If information produced in discovery 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; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.
(c)
Protective Orders.
(1)
In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include 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. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(D)
forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
(d)
Timing and Sequence of Discovery.
(e)
Supplementing Disclosures and Responses.
(1)
In General. A party who has made a disclosure under Rule
26
(a)—or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response:
(2)
Expert Witness. For an expert whose report must be disclosed under Rule
26
(a)(2)(B), the party’s duty to supplement extends both to information included in the report and to information given during the expert’s deposition. Any additions or changes to this information must be disclosed by the time the party’s pretrial disclosures under Rule
26
(a)(3) are due.
(f)
Conference of the Parties; Planning for Discovery.
(1)
Conference Timing. Except in a proceeding exempted from initial disclosure under Rule
26
(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicable—and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule
16
(b).
(2)
Conference Content; Parties’ Responsibilities. In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule
26
(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person.
(3)
Discovery Plan. A discovery plan must state the parties’ views and proposals on:
(A)
what changes should be made in the timing, form, or requirement for disclosures under Rule
26
(a), including a statement of when initial disclosures were made or will be made;
(B)
the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;
(C)
any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;
(D)
any issues about claims of privilege or of protection as trial-preparation materials, including—if the parties agree on a procedure to assert these claims after production—whether to ask the court to include their agreement in an order;
(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:
(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;
(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.