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Rule 35. Physical and Mental Examinations

Arizona Revised Statutes AnnotatedRules of Civil Procedure for the Superior Courts of ArizonaEffective: September 1, 2019

Arizona Revised Statutes Annotated
Rules of Civil Procedure for the Superior Courts of Arizona (Refs & Annos)
V. Disclosure and Discovery
Effective: September 1, 2019
16 A.R.S. Rules of Civil Procedure, Rule 35
Rule 35. Physical and Mental Examinations
<For applicability of amending Order No. R-17-0010, effective July 1, 2018, see the Application Provisions note at the beginning of the Arizona Rules of Civil Procedure.>
(a) Examination on Order.
(1) Generally. The court where the action is pending may order a party whose physical or mental condition is in controversy to submit to a physical or mental examination by a physician or psychologist. The court has the same authority to order a party to produce for examination a person who is in the party's custody or under the party's legal control.
(2) Motion and Notice; Contents of the Order. An order under Rule 35(a)(1):
(A) may be entered only on motion for good cause and on notice to all parties and the person to be examined;
(B) must specify the time, place, manner, conditions, and scope of the examination; and
(C) must specify the person or persons who will perform the examination.
(b) Examination on Notice; Motion Objecting to Examiner; Failure to Appear.
(1) Notice. When the parties agree that an examination is appropriate but do not agree on the examiner, the party seeking the examination may proceed by giving reasonable--and not fewer than 30 days--written notice to all other parties. The notice must:
(A) identify the party or person to be examined;
(B) specify the time, place, and scope of the examination; and
(C) identify the examiner(s).
(2) Motion Objecting to Examiner. After being served with a proper notice under Rule 35(b)(1), a party who objects to the examiner(s) identified in the notice may file a motion in the court where the action is pending. For good cause, the court may order that the examination be conducted by a physician or psychologist other than the one specified in the notice.
(3) Failure to Appear. Unless the party has filed a motion under Rule 26(c), the party must appear--or produce the person in the party's custody or legal control--for the noticed examination. If the party fails to do so, the court where the action is pending may, on motion, make such orders concerning the failure as are just, including those under Rule 37(f).
(c) Attendance of Representative; Recording.
(1) Attendance of Representative. Unless his or her presence may adversely affect the examination's outcome, the person to be examined has the right to have a representative present during the examination.
(2) Recording.
(A) Audio or Video Recording. The person to be examined or the party requesting the examination may audio-record or video-record any examination. On a showing that such recording may adversely affect the examination's outcome, the court may limit the recording, using the least restrictive means possible.
(B) Copy of Recording. A copy of a recording made of an examination must be provided to any party upon request.
(d) Examiner's Report; Other Like Reports of Same Condition; Waiver of Privilege.
(1) Contents. The examiner's report must be in writing and set out in detail the examiner's findings, including diagnoses, conclusions, and the results of any tests.
(2) Request by the Party or Person Examined. The party who is examined--or who produces the person examined--may request the examiner's report, like reports of the same condition, and written or recorded notes from the examination. If such a request is made, the party who moved for or noticed the examination must, within 20 days of the examination or request--whichever is later--deliver to the requestor copies of:
(A) the examiner's report;
(B) like reports of all earlier examinations of the same condition; and
(C) all written or recorded notes made by the examiner and the person examined at the time of the examination, and must provide access to the original written or recorded notes for purposes of comparing them with the copies.
(3) Request by the Examining Party. After delivering the materials required by Rule 35(d)(2), the party who moved for or noticed the examination is entitled, on its request, to receive from the party who was examined--or who produced the person examined--like reports of all earlier or later examinations of the same condition. But those reports need not be delivered by the party with custody or control of the person examined if the party shows that it could not obtain them.
(4) Waiver of Privilege. By requesting and obtaining the examiner's report, or by deposing the examiner, the party examined waives any privilege it may have--in that action or any other action involving the same controversy--concerning testimony by any other person who has examined or who later examines the same condition.
(5) Failure to Deliver a Report as Ordered. On motion, the court may order--on terms that are just--that a party deliver a report of an examination. If the report is not delivered as ordered, the court may exclude the examiner's testimony at trial.
(6) Scope. This Rule 35(d) applies to examinations conducted by agreement of the parties, unless the agreement states otherwise. This rule does not preclude a party from obtaining an examiner's report, or deposing an examiner, under other rules.

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Added Sept. 2, 2016, effective Jan. 1, 2017. Amended Aug. 31, 2017, effective July 1, 2018.
16 A. R. S. Rules Civ. Proc., Rule 35, AZ ST RCP Rule 35
Current with amendments received through 08/15/2020.
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