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Rule 26. General Provisions Governing Discovery

Arizona Revised Statutes AnnotatedRules of Civil Procedure for the Superior Courts of Arizona

Arizona Revised Statutes Annotated
Rules of Civil Procedure for the Superior Courts of Arizona (Refs & Annos)
V. Disclosure and Discovery
16 A.R.S. Rules of Civil Procedure, Rule 26
Rule 26. General Provisions Governing Discovery
<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) Discovery Methods. A party may obtain discovery by any of the following methods:
(1) depositions by oral examination or written questions under Rules 30 and 31, respectively;
(2) written interrogatories under Rule 33;
(3) requests for production of documents or things or permission to enter onto land or other property for inspection and other purposes, under Rule 34;
(4) physical and mental examinations under Rule 35;
(5) requests for admission under Rule 36; and
(6) subpoenas for production of documentary evidence or for inspection of premises under Rule 45(c).
(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 and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
(2) Limitations on Frequency and Extent.
(A) When Permitted. The court may alter the limits in these rules on depositions, interrogatories, and requests for admission consistent with the procedures in Rule 26.2(g) and (h).
(B) Specific Limits on Discovery of Electronically Stored Information.
(i) Generally. A party need not provide discovery or disclosure of electronically stored information from sources that the party shows are not reasonably accessible because of undue burden or expense, including sources that are unduly burdensome or expensive to access because of the party's past good-faith operation of an electronic information system or good-faith and consistent application of a document retention policy. If a party makes that showing, the court may nonetheless order disclosure or discovery from such sources if the requesting party shows good cause, considering the limits of Rule 26(b)(1). The court may specify conditions for the disclosure or discovery. Rule 26(e) applies in determining whether electronically stored information is not reasonably accessible as provided in this rule.
(ii) Specific Limits. A party is not entitled to obtain discovery of electronically stored information that is sought for purposes unrelated to the case. A party is not entitled to image or inspect an opposing party's data sources or data storage devices, or to discover electronically stored information that would require restoration of data through forensic means, unless the court finds: (1) that the information sought is relevant to a claim of fraud or other intentional misconduct; (2) that restoration is reasonably required to address prejudice arising from spoliation of evidence or a party's failure to comply with its obligation to preserve evidence under Rule 37(g); or (3) other good cause.
(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules 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 proposed discovery is outside the scope permitted by Rule 26(b)(1).
(3) Work Product and Witness Statements.
(A) Documents and Tangible Things Prepared in Anticipation of Litigation or for Trial. Ordinarily, a party may not discover documents and tangible things that another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) prepared in anticipation of litigation or for trial. But, subject to Rule 26(b)(4)(B), a party may discover those materials if:
(i) the materials are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has a 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 of Opinion Work Product. If the court orders discovery of materials under Rule 26(b)(3)(A), 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) Discovery of Own Statement. On request and without the showing required under Rule 26(b)(3)(A), any party or other person may obtain his or her own previous statement about the action or its subject matter. If the request is refused, the party or other person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A statement discoverable under this rule is either:
(i) a written statement that the party or other person signed or otherwise adopted or approved; or
(ii) a contemporaneous stenographic, video, audio, or other recording--or a transcription of it--that recites substantially verbatim the party's or other person's oral statement.
(4) Expert Discovery.
(A) Deposition of an Expert Who May Testify. A party may depose any person who has been disclosed as an expert witness under Rule 26.1(d)(1).
(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26.1(d), regardless of the form in which the draft is recorded.
(C) Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any expert witness regardless of the form of the communications, except to the extent that the communications:
(i) relate to compensation for the expert's study or testimony;
(ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or
(iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.
The dates on which the expert received facts or data from the party's attorney that the expert considered in forming the opinions to be expressed, and any portions of communications between the party's attorney and the expert that evidence those dates are discoverable.
(D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not 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. A party may discover such facts or opinions only:
(i) as provided in Rule 35(d); 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.
(E) 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 (D), including the time the expert spends testifying in a deposition; and
(ii) for discovery under Rule 26(b)(4)(D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert's facts and opinions, including--in the court's discretion--the time the expert reasonably spends preparing for deposition.
(F) Number of Experts Per Issue.
(i) Generally. Unless the parties agree or the court orders otherwise for good cause, each side is presumptively entitled to call only one retained or specially employed expert to testify on an issue. When there are multiple parties on a side and those parties cannot agree on which expert to call on an issue, the court may designate the expert to be called or, for good cause, allow more than one expert to be called.
(ii) Standard-of-Care Experts in Medical Malpractice Actions. Notwithstanding the limits of Rule 26(b)(4)(F)(i), a defendant in a medical malpractice action may--in addition to that defendant's standard-of-care expert witness--testify on the issue of that defendant's standard of care. In such an instance, the court is not required to allow the plaintiff an additional expert witness on the issue of the standard of care.
(5) Notice of Nonparty at Fault. No later than 150 days after filing its answer, a party must serve on all other parties--and should file with the court--a notice disclosing any person: (A) not currently or formerly named as a party in the action; and (B) whom the party alleges was wholly or partly at fault under A.R.S. § 12-2506(B). The notice must disclose the identity and location of the nonparty allegedly at fault, and the facts supporting the allegation of fault. A party who has served a notice of nonparty at fault must supplement or correct its notice if it learns that the notice was or has become materially incomplete or incorrect and if the additional or corrective information has not otherwise been disclosed to the other parties through the discovery process or in writing. A party must supplement or correct its notice of nonparty at fault under this rule in a timely manner, but in no event more than 30 days after it learns that the notice is materially incomplete or incorrect. The trier of fact may not allocate any percentage of fault to a nonparty who is not disclosed in accordance with this rule except on stipulation of all the parties or on motion showing good cause, reasonable diligence, and lack of unfair prejudice to all other parties.
(6) Claims of Privilege or Protection of Work-Product Materials.
(A) Information, Documents, or Electronically Stored Information Withheld.
(i) When a party withholds information, a document, or electronically stored information in response to a written discovery request on the claim that it is privileged or subject to protection as work product, the party must promptly identify in writing the information, document, or electronically stored information withheld and describe the nature of that information, document, or electronically stored information in a manner that--without revealing information that is itself privileged or protected--will enable other parties to assess the claim.
(ii) The parties may stipulate to, or the court may order, alternate requirements to reduce the burden and expense of providing the information required by Rule 26(b)(6)(A)(i), such as identification by category or excluding certain categories of documents.
(iii) A party seeking alternative privilege log requirements must confer with the opposing party in an attempt to reach agreement. Disputes must be presented at the Rule 16(d) Scheduling Conference, or under Rule 26(d).
(B) Inadvertent Production. If a party contends that a document or electronically stored information subject to a claim of privilege or of protection as work-product material has been inadvertently produced in discovery, the party making the claim may notify any party who received the document or electronically stored information of the claim and the basis for it. After being notified, a party: (i) must promptly return, sequester, or destroy the specified document or electronically stored information and any copies it has; (ii) must not use or disclose the document or electronically stored information until the claim is resolved; (iii) must take reasonable steps to retrieve the document or electronically stored information if the party disclosed it before being notified; and (iv) may promptly present the document or electronically stored information to the court under seal for a determination of the claim. The producing party must preserve the document or electronically stored information until the claim is resolved.
(c) Protective Orders.
(1) Generally. 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 alternatively, on matters relating to a deposition, the court in the county where the deposition will be taken. A person receiving a request to preserve electronically stored information may move for a protective order in the court in the county where the action is pending, as provided in Rule 45.2(d)(2). Subject to Rule 26(c)(4), the court may, for good cause, enter an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(A) forbidding the discovery;
(B) specifying terms and conditions, including time and place, for the discovery;
(C) prescribing a discovery method other than the one selected by the party seeking discovery;
(D) forbidding inquiry into certain matters, or limiting the scope of discovery to certain matters;
(E) designating the persons who may be present while the discovery is conducted;
(F) requiring that a deposition be sealed and opened only on court order;
(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and
(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.
(2) Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on terms that are just, order that any party or person provide or permit discovery.
(3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses on a motion for a protective order.
(4) Confidentiality Orders.
(A) Burden of Proof. Before the court may enter an order that limits a party or person from disclosing information or materials produced in the action to a person who is not a party to the action and before the court may deny an intervenor's request for access to such discovery materials: (i) the party seeking confidentiality must show why a confidentiality order should be entered or continued; and (ii) the party or intervenor opposing confidentiality must show why a confidentiality order should be denied in whole or in part, modified, or vacated. The burden of showing good cause for an order remains with the party seeking confidentiality.
(B) Findings of Fact. When ruling on a motion for a confidentiality order, the court must make findings of fact concerning any relevant factors, including but not limited to: (i) any party's or person's need to maintain the confidentiality of such information or materials; (ii) any nonparty's or intervenor's need to obtain access to such information or materials; and (iii) any possible risk to the public health, safety, or financial welfare to which such information or materials may relate or reveal. No such findings of fact are needed if the parties have stipulated to such an order or if a motion to intervene and to obtain access to materials subject to a confidentiality order is unopposed. A party moving for entry of a confidentiality order must submit with its motion a proposed order containing proposed findings of fact.
(C) Least Restrictive Means. An order restricting release of information or materials to nonparties or intervenors must use the least restrictive means necessary to maintain any needed confidentiality.
(d) Expedited Procedure for Resolving Discovery and Disclosure Disputes.
(1) When Applicable. Unless the court decides to permit full briefing, this procedure applies to all disputes between parties to the action that could properly be addressed in motions for protective order under Rule 26(c) or motions to compel discovery or disclosure under Rule 37(a). The filings in a Rule 26(d) proceeding are not motions.
(2) Joint Statement of Discovery or Disclosure Dispute. When the parties have a dispute that could properly be addressed under Rule 26(c) or Rule 37(a), they must file with the court a joint statement of discovery or disclosure dispute. The joint statement must not exceed 3 pages of explanatory text, with each party entitled to submit one and one-half pages of that text. The parties must also attach a good faith consultation certificate complying with Rule 7.1(h) and may not attach exhibits. The purposes of the joint statement are to notify the court of the dispute, and to make a record of the discovery or disclosure sought. Briefing on the dispute is permitted only if ordered by the court.
(3) Expedited Hearing by the Court. Unless the court orders otherwise, the parties may jointly contact the court by telephone to request a hearing on the joint statement of discovery dispute. The court should schedule the matter at the earliest convenient time, whether by telephone or in person.
(4) Resolution by Minute Entry. The court must issue a minute entry setting forth the resolution of the discovery dispute. After resolution, a party may file with the court those materials necessary to create a record of the discovery or disclosure the court permitted or denied.
(5) Depositions. Nothing in Rule 26(d) limits the ability of the parties to seek the intervention of the court by telephone during a deposition without the necessity of filing a written statement of discovery dispute.
(e) Determining Whether Electronically Stored Information Is Reasonably Accessible.
(1) Generally. In deciding any motion or Rule 26(d) proceeding addressing whether sources of electronically stored information are not reasonably accessible because of undue burden or expense as provided in Rule 26(b)(2)(B)(i), the court must determine:
(A) whether the information sought is within the permissible scope of discovery, considering the limits of Rule 26(b)(1) and 26(b)(2)(B)(ii);
(B) whether the party or person opposing the discovery has shown that it would incur undue burden or expense; and, if so,
(C) if good cause is shown for the requested discovery or disclosure.
(2) Affidavit of Burden or Expense. A party or person contending that the disclosure or discovery of electronically stored information should be disallowed or limited because of undue burden or expense must file with their joint statement under Rule 26(d)(2) or their motion for protective order under Rule 26(c) an affidavit describing the burden and estimating the expense that would be incurred.
(3) Burden or Expense--Factors. In addition to the factors in Rule 26(b)(1), in determining whether the party or person opposing the discovery or disclosure would incur undue burden or expense, the court must consider:
(A) the estimated expense of the discovery or disclosure;
(B) the anticipated disruption of the responding party or person's normal business operations if the discovery or disclosure is ordered;
(C) any efforts required to obtain data in the custody of another;
(D) the difficulty and expense of any necessary review to separate confidential or privileged material;
(E) whether the difficulty or expense of accessing the information is attributable to the good-faith routine operation of an electronic information system, or the good-faith and consistent application of a document retention policy, before a duty to preserve arose under Rule 37(g)(1);
(F) whether the difficulty or expense of accessing the requested information is attributable to any violation of Rule 37(g) or to other purposeful action by the responding party or person to shield information from discovery; and
(G) the party or person's interest in the action.
(4) Good Cause--Factors. In addition to the factors in Rule 26(b)(1), in determining whether good cause is shown, the court may consider:
(A) the likelihood of finding relevant, responsive information that cannot be obtained from other, more accessible sources;
(B) the extent to which the request has been narrowly tailored to discover relevant information;
(C) the importance of the information to a fair resolution on the merits.
(5) Specifying Conditions. The court may impose conditions on the discovery or disclosure that include:
(A) issuing any appropriate orders under Rule 26(c);
(B) requiring the party seeking discovery to pay some or all of the reasonable expenses that the responding party will incur in complying with the requested discovery or disclosure, which may include the reasonable fees charged by counsel, consultants, and vendors; and
(C) reimbursing the responding party or person for disruption to the responding party's or person's normal business operations, to the extent such cost is quantifiable and reimbursement is warranted by the facts and circumstances.
(f) Timing and Sequence of Discovery. Unless the court orders otherwise for good cause:
(1) a party may not seek discovery from any source--including nonparties--before that party serves its initial disclosure statement under Rule 26.1;
(2) methods of discovery may be used in any sequence; and
(3) discovery by one party does not require any other party to delay its discovery.
(g) Supplementing and Correcting Discovery Responses.
(1) Generally. A party who has responded to an interrogatory, request for production, or request for admission must supplement or correct its response if it learns that the response was or has become materially incomplete or incorrect and if the additional or corrective information has not otherwise been disclosed to the other parties during the discovery process or in writing.
(2) Timing. A party must supplement or correct a discovery response under this rule in a timely manner, but in no event more than 30 days after it learns that the response is materially incomplete or incorrect. If the party knows or reasonably should know the additional or corrective information is relevant to a hearing or deposition scheduled to occur in less than 30 days, the party must supplement or correct the discovery response reasonably in advance of the hearing or deposition.
(h) Sanctions. The court may impose an appropriate sanction--including any order under Rule 16(h)--against a party or attorney who has engaged in unreasonable, groundless, abusive, or obstructionist conduct in connection with discovery.
(i) Requirement of Good Faith Consultation Certificate. Any discovery or disclosure motion, or joint statement of discovery or disclosure dispute, must attach a good faith consultation certificate complying with Rule 7.1(h).

Credits

Added Sept. 2, 2016, effective Jan. 1, 2017. Amended Aug. 31, 2017, effective July 1, 2018; Aug. 28, 2018, effective Jan. 1, 2019.

Editors' Notes

STATE BAR COMMITTEE NOTE
1984 Amendments to Rule 26(a) and (b)
The 1984 amendments to Rule 26 are aimed at preventing both excess discovery and evasion of reasonable discovery devices. Deletion of “the frequency of use” from Rule 26(a) is intended to deal directly with the problems of duplicative and needless discovery. This change and others in Rule 26(b) should encourage judges to identify instances of unnecessary discovery and to limit the use of the various discovery devices accordingly.
New standards are added in Rule 26(b)(1) which courts will use in deciding whether to limit the frequency or extent of use of the various discovery methods. Subdivision (i) is intended to reduce redundancy in discovery and require counsel to be sensitive to the comparative costs of different methods of securing information. Subdivision (ii) also seeks to minimize repetitiveness and to oblige lawyers to think through their discovery activities in advance so that full utilization is made of each deposition, document request, or set of interrogatories. Subdivision (iii) addresses the problem of discovery that is disproportionate to the individual lawsuit as measured by various factors, e.g., its nature and complexity, the importance of the issues at stake, the financial position of the parties, etc. These standards must be applied in an even-handed manner to prevent use of discovery to wage a war of attrition or as a device to coerce a party, whether affluent or financially weak.
Acknowledging that discovery cannot always be self-regulating, the Rule contemplates earlier and greater judicial involvement in the discovery process. The court may act on motion or its own initiative.
COMMITTEE COMMENT
1991 Amendment to Rule 26(b)(4)
The amendment to Rule 26(b)(4) must be read in conjunction with the amendment to [former Rule 43(g)]. The purpose of these two rules is to avoid unnecessary costs inherent in the retention of multiple independent expert witnesses. The words “independent expert” in this rule refer to a person who will offer opinion evidence who is retained for testimonial purposes and who is not a witness to the facts giving rise to the action. As used in this rule, the word “presumptively” is intended to mean that an additional expert on an issue can be used only upon a showing of good cause. Where an issue cuts across several professional disciplines, the court should be liberal in allowing expansion of the limitation upon experts established in the rule.
[Former Rule 43(g)] is intended to reinforce Rule 403 of the Arizona Rules of Evidence which gives the court discretion to exclude relevant evidence which represents ... “needless presentation of cumulative evidence.” By use of the word “shall” in [former Rule 43(g)] it is the intent of the Committee to strongly urge trial judges to exclude testimony from independent experts on both sides which is cumulative except in those circumstances where the cause of justice requires.
There is no intent to preclude witnesses who in addition to their opinion testimony are factual witnesses. Under [former Rule 43(g)], however, the court would exclude an independent expert witness whose opinion would simply duplicate that of the factual expert witness, except for good cause shown.
This amendment to Rule 26(b)(4) in combination with [former Rule 43(g)] and [Rules 16(d)(5) and 16(e)(4) (formerly Rule 16(c)(3))] is intended to discourage the unnecessary retention of multiple independent expert witnesses and the discovery costs associated with listing multiple cumulative independent experts as witnesses. The Committee does not intend any change in the present rule regarding specially retained experts.
STATE BAR COMMITTEE NOTE
2000 Amendments to Rule 26(b) and (c)
As part of the effort to consolidate formerly separate sets of procedural rules into either the Arizona Rules of Civil Procedure or the Rules of the Arizona Supreme Court, the Uniform Rules of Practice of the Superior Court were effectively transferred to one or the other of those existing sets of Rules. The provisions of former Rule V(a) of the Uniform Rules of Practice of the Superior Court, which required the filing, in certain counties, of a list of witnesses and exhibits as a predicate for submitting a Motion to Set and Certificate of Readiness, however, were not retained in that process. The Committee was of the view that this requirement had been rendered obsolete by the provisions of Rule 26.1, which requires the voluntary and seasonable disclosure of, inter alia, the identities of trial witnesses and exhibits. This necessitated the amendment of Rule 26(b)(5) to eliminate the former reference to Rule V(a) and to substitute in its place a reference to new Rule 38.1(b)(2) of the Arizona Rules of Civil Procedure.
Rule 26(b)(4) was amended to incorporate, as a new separate paragraph, the provisions of former Rule 1(D)(4) of the Uniform Rules of Practice for Medical Malpractice Cases. The Comment to that former Rule had observed that, if a medical malpractice case involved issues of nursing care, anesthesia, and general surgery, the plaintiff should be entitled to three standard-of- care experts and, similarly, if the hospital employed the nurse, anesthesiologist and surgeon and was the sole defendant, it would also be entitled to three standard-of-care experts. The addition of the phrase “except upon a showing of good cause” merely incorporates the standards of former Rule 43(g), which addressed the same subject and was abrogated as unnecessary. Finally, the provisions of Rule 26(e) were amended to reflect prior amendments to Rules 26.1 and 37 which require the disclosure of such information by no later than sixty (60) days prior to trial, without leave of court.
COMMENT
2002 Amendment to Rule 26(c)
The amendment to Rule 26(c) does not limit the discretion of trial judges to issue confidentiality orders in the appropriate case. Trial judges should look to federal case law to determine what factors, including the three listed in the rule, should be weighed in deciding whether to grant or modify a confidentiality order where parties contest the need for such an order. Trial judges also should look to federal case law to determine whether to permit nonparties to intervene and obtain access to information protected by such orders.
16 A. R. S. Rules Civ. Proc., Rule 26, AZ ST RCP Rule 26
Current with amendments received through 08/15/19
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