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Rule 26.1. Prompt Disclosure of Information

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 26.1
Formerly cited as AZ ST RCP Rule 26(b)
Rule 26.1. Prompt Disclosure of Information
<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) Duty to Disclose; Disclosure Categories. Within the times set forth in Rule 26.1(f) or in a Scheduling Order or Case Management Order, each party must disclose in writing and serve on all other parties a disclosure statement setting forth:
(1) the factual basis of each of the disclosing party's claims or defenses;
(2) the legal theory on which each of the disclosing party's claims or defenses is based, including--if necessary for a reasonable understanding of the claim or defense--citations to relevant legal authorities;
(3) the name, address, and telephone number of each witness whom the disclosing party expects to call at trial, and a description of the substance--and not merely the subject matter--of the testimony sufficient to fairly inform the other parties of each witness' expected testimony;
(4) the name and address of each person whom the disclosing party believes may have knowledge or information relevant to the subject matter of the action, and a fair description of the nature of the knowledge or information each such person is believed to possess;
(5) the name and address of each person who has given a statement--as defined in Rule 26(b)(3)(C)(i) and (ii)--relevant to the subject matter of the action, and the custodian of each of those statements;
(6) the anticipated subject areas of expert testimony;
(7) a computation and measure of each category of damages alleged by the disclosing party, the documents and testimony on which such computation and measure are based, and the name, address, and telephone number of each witness whom the disclosing party expects to call at trial to testify on damages;
(8) the existence, location, custodian, and general description of any tangible evidence, documents, or electronically stored information that the disclosing party plans to use at trial, including any material to be used for impeachment;
(9) the existence, location, custodian, and general description of any tangible evidence, documents, or electronically stored information that may be relevant to the subject matter of the action; and
(10) for any insurance policy, indemnity agreement, or suretyship agreement under which another person may be liable to satisfy part or all of a judgment entered in the action or to indemnify or reimburse for payments made to satisfy the judgment: (A) a copy--or if no copy is available, the existence and substance--of the insurance policy, indemnity agreement, or suretyship agreement; (B) a copy--or if no copy is available, the existence and basis--of any disclaimer, limitation, or denial of coverage or reservation of rights under the insurance policy, indemnity agreement, or suretyship agreement; and (C) the remaining dollar limits of coverage under the insurance policy, indemnity agreement, or suretyship agreement. A party need only supplement its disclosure regarding the remaining dollar limits of coverage upon another party's written request made within 30 days before a settlement conference or mediation or within 30 days before trial. Within 10 days after such a request is served, a party must supplement its disclosure of the remaining dollar limits of coverage. For purposes of this rule, an insurance policy means a contract of or agreement for or effecting insurance, or the certificate memorializing it--by whatever name it is called--and includes all clauses, riders, endorsements, and papers attached to, or a part of, it, but does not include an application for insurance. Information concerning an insurance policy, indemnity agreement, or suretyship agreement is not admissible in evidence merely because it is disclosed under this rule.
(b) Disclosure of Hard-Copy Documents. Subject to the limits of Rule 26(b)(1) or other good cause for not doing so, a party must serve with its disclosure a copy of any documents existing in hard copy that it has identified under Rule 26.1(a)(8), (9), and (10). If a party withholds any such hard-copy document from production, it must in its disclosure identify the document along with the name, telephone number, and address of the document's custodian. A party who produces hard-copy documents for inspection must produce them as they are kept in the usual course of business.
(c) Disclosure of Electronically Stored Information.
(1) Duty to Confer. When the existence of electronically stored information is disclosed or discovered, the parties must promptly confer and attempt to agree on matters relating to its disclosure and production, taking into account the limitations of Rule 26(b)(1) and (2). At the conference, each party must have at least one representative (which may include counsel) available who is reasonably familiar with the party's systems containing electronically stored information. Disputes must be presented under Rule 26(d). The following topics should be addressed, as applicable:
(A) the location and types of systems that are reasonably likely to contain electronically stored information within the permissible scope of discovery;
(B) whether it is appropriate to conduct discovery of electronically stored information in phases or stages as a method of reducing costs and burden, and if so, what the parties will include in the first phase;
(C) sources of electronically stored information that are less likely to contain discoverable information, and from which the parties will postpone or avoid discovery;
(D) search protocols or methods that will be used to identify discoverable information and filter out information not subject to discovery;
(E) the form in which the information will be produced;
(F) sharing or shifting of costs incurred by the parties for disclosing and producing the information;
(G) agreements on the preservation of electronically stored information; and
(H) whether the parties will enter a stipulation addressing inadvertent production of privileged information or will seek an order under Rule 502(d) of the Arizona Rules of Evidence addressing inadvertent production.
(2) Production of Electronically Stored Information. Unless the parties agree or the court orders otherwise, within 40 days after serving its initial disclosure statement, a party must produce the electronically stored information identified under Rule 26.1(a)(8) and (9). Absent good cause, no party need produce the same electronically stored information in more than one form.
(3) Presumptive Form of Production. Unless the parties agree or the court orders otherwise, a party must produce electronically stored information in the form requested by the receiving party. If the receiving party does not specify a form, the producing party may produce the electronically stored information in native form or in another reasonably usable form that will enable the receiving party to have the same ability to access, search, and display the information as the producing party.
(4) Limits on Disclosure of Electronically Stored Information. Rule 26(b)(2) applies to the disclosure of electronically stored information.
(d) Disclosure of Expert Testimony.
(1) In General. In addition to the disclosures required by Rule 26.1(a), a party must disclose the identity of any witness it may use at trial to present evidence under Arizona Rules of Evidence 702, 703, or 705.
(2) Form of Expert Disclosures. Unless the parties stipulate or the court orders otherwise, each party in an action assigned to Tier 3 must provide an expert report complying with Rule 26.1(d)(4) for any witness retained or specially employed to provide expert testimony in the action or one whose duties as the party's employee regularly involve giving expert testimony. On request of any party or on its own, the court may order an expert report in other actions if it determines that a written report will assist the court in determining if an expert's testimony satisfies the requirements of Arizona Rule of Evidence 702. In all other cases, expert disclosures must comply with Rule 26.1(d)(3). Any party contending that an expert report should be required in connection with a Rule 702 determination must raise the issue promptly after learning of the alleged need for the report. Disputes over the form or sufficiency of expert disclosures must be presented at the Rule 16(d) Scheduling Conference, or under Rule 26(d).
(3) Expert Witnesses Who Do Not Provide a Written Report. If an expert witness is not required to provide a written report, the disclosure must state:
(A) the expert's name, address, and qualifications;
(B) the subject matter on which the expert is expected to testify;
(C) the substance of the facts and opinions to which the expert is expected to testify;
(D) a summary of the grounds for each opinion;
(E) a statement of the compensation to be paid for the expert's work and testimony in the case; and
(F) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at a hearing or trial.
(4) Expert Witnesses Who Must Provide a Written Report. If an expert is required to provide a signed written report, the report must contain:
(A) the expert's name, address, and qualifications, including a list of all publications authored in the previous 10 years;
(B) a complete statement of all opinions the expert will express and the basis and reasons for them;
(C) the facts or data considered by the expert in forming them;
(D) any exhibits that will be used to summarize or support them;
(E) identification of any publication within the scope of Arizona Rule of Evidence 803(18) on which the expert intends to rely for any opinion;
(F) a statement of the compensation to be paid for the expert's work and testimony in the case; and
(G) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at a hearing or trial.
(e) Purpose; Scope.
(1) Purpose. The purpose of the disclosure requirements of this Rule 26.1 is to ensure that all parties are fairly informed of the facts, legal theories, witnesses, documents, and other information relevant to the action.
(2) Scope. A party must include in its disclosures information and data in its possession, custody, and control as well as that which it can ascertain, learn, or acquire by reasonable inquiry and investigation.
(f) Time for Disclosure; Continuing Duty.
(1) Initial Disclosures. Unless the parties agree or the court orders otherwise, a party seeking affirmative relief must serve its initial disclosure of information under Rule 26.1(a) as fully as then reasonably possible no later than 30 days after the filing of the first responsive pleading to the complaint, counterclaim, crossclaim, or third-party complaint that sets forth the party's claim for affirmative relief. Unless the parties agree or the court orders otherwise, a party filing a responsive pleading must serve its initial disclosure of information under Rule 26.1(a) as fully as then reasonably possible no later than 30 days after it files its responsive pleading.
(2) Additional or Amended Disclosures. The duty of disclosure prescribed in Rule 26.1(a) is a continuing duty, and each party must serve additional or amended disclosures when new or additional information is discovered or revealed. A party must serve such additional or amended disclosures in a timely manner, but in no event more than 30 days after the information is revealed to or discovered by the disclosing party. If a party obtains or discovers information that it knows or reasonably should know is relevant to a hearing or deposition scheduled to occur in less than 30 days, the party must disclose such information reasonably in advance of the hearing or deposition. If the information is disclosed in a written discovery response or a deposition in a manner that reasonably informs all parties of the information, the information need not be presented in a supplemental disclosure statement. A party seeking to use information that it first disclosed later than the deadline set in a Scheduling Order or Case Management Order--or in the absence of such a deadline, later than 60 days before trial--must obtain leave of court to extend the time for disclosure as provided in Rule 37(c)(4) or (5).
(g) Signature Under Oath. Each disclosure must be in writing and signed under oath by the disclosing party.
(h) Claims of Privilege or Protection of Work-Product Materials.
(1) Information Withheld. When a party withholds information, a document, or electronically stored information from disclosure on a claim that it is privileged or subject to protection as work product, the party must promptly comply with Rule 26(b)(6)(A).
(2) Inadvertent Production. If a party contends that a document or electronically stored information subject to a claim of privilege or protection as work-product material has been inadvertently disclosed, the producing and receiving parties must comply with Rule 26(b)(6)(B).

Credits

Added Sept. 2, 2016, effective Jan. 1, 2017. Amended Aug. 31, 2017, effective July 1, 2018.
16 A. R. S. Rules Civ. Proc., Rule 26.1, AZ ST RCP Rule 26.1
Current with amendments received through 08/15/2020.
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