Arizona

Civil Procedure

Civil Procedure

Rule 26.2 – Tiered Limits to Discovery Based on Attributes of Cases

(a)Generally. This rule explains how much discovery a party may take in their case. The amount of discovery a party may take is limited by the tier to which their case is assigned. This rule explains how and when cases are assigned to one of three tiers, each of which has different limits.
(b)Criteria for Assigning Cases to Tiers. Cases should be considered for assignment to a tier by case characteristics, consistent with the factors that define proportional discovery in Rule 26(b)(1). The following sets of characteristics are not exhaustive:

(1) Tier 1: Case Characteristics. These are simple cases that can be tried in one or two days. Automobile tort, intentional tort, premises liability, and insurance coverage claims arising from those types of claims are generally Tier 1 cases, absent unusual circumstances. Cases with minimal documentary evidence and few witnesses are likely Tier 1 cases.
(2) Tier 2: Case Characteristics. These are cases of intermediate complexity. They are likely to have more than minimal documentary evidence and more than a few witnesses. They are likely to include, but may not include, expert witnesses. They are likely to involve multiple theories of liability, and may involve counterclaims or cross-claims. Cases that do not easily fit within Tiers 1 and 3 belong here.
(3) Tier 3: Case Characteristics. These are cases that are logistically or legally complex. Class actions, antitrust, multi-party commercial or construction cases, securities cases, environmental torts, construction defect cases, medical malpractice cases, products liability cases, and mass torts are among those cases that generally belong in Tier 3, absent unusual circumstances. Cases with voluminous documentary evidence, or with numerous pretrial motions raising difficult or novel legal issues, are likely Tier 3 cases. Cases requiring management of a large number of witnesses or separately represented parties, or which require coordination with related actions pending in other courts, are likely Tier 3 cases.
(c)How Courts Assign Cases to Tiers. The tier to which a case is assigned is determined by either: (1) stipulation or motion, for good cause shown; (2) placement by the court based on the characteristics of the case; or (3) the sum of the relief sought in the complaint, and any counterclaims or crossclaims.

(1) By Stipulation of Parties or on Motion. As provided in Rule 16(c)(6), all parties by stipulation or any party by motion may request that the court assign the case to a tier other than the one to which it would be assigned under Rule 26.2(c)(3), for good cause. A court must determine good cause to vary a tier with reference to the factors that define proportional discovery in Rule 26(b)(1). The court may reject any stipulation or joint motion requesting assignment under this rule.
(2) Placement by Court. The court may evaluate a case for assignment to a tier. The court has the discretion to assign a case to any tier, based on the totality of the circumstances of that case, consistent with the case characteristics set forth in Rule 26.2(b) and the factors that define proportional discovery in Rule 26(b)(1).
(3) Monetary or Nonmonetary Relief Requested. Except as provided in Rule 8.1(e), all cases not assigned a tier by the procedures in Rule 26.2(c)(1) or (2) are deemed to be assigned a tier based on the damages claimed in the action, as defined in Rule 26.2(e).

(A) Tier 1. Actions claiming $50,000 or less in damages are permitted standard discovery as described for Tier 1.
(B) Tier 2. Actions claiming more than $50,000 and less than $300,000 in damages are permitted standard discovery as described for Tier 2.
(C) Tier 3. Actions claiming $300,000 or more in damages are permitted standard discovery as described for Tier 3.
(D) Certain Actions Claiming Nonmonetary Relief. Actions claiming nonmonetary relief alone or in conjunction with claims for damages under $300,000 are permitted standard discovery as described for Tier 2.
(d)When Courts Assign Cases to Tiers.

(1) By Monetary or Nonmonetary Relief Requested. From the filing of the complaint until a court assigns a case to a different tier, the case is deemed to be assigned to the tier to which it would be assigned based on its monetary or nonmonetary relief requested under Rule 26.2(c)(3).
(2)By the Court’s Own Evaluation. If a court evaluates a case for tiering under Rule 26.2(c)(2), it must assign the case to a tier no later than 20 days after the parties file their Joint Report under Rule 16(c)(1).
(3) By Stipulation of Parties or Motion. If a court assigns a case a tier based on a stipulation or motion under Rule 26.2(c)(1), it should do so at the earliest practicable time. That notwithstanding, a later joined or later served party may promptly move the court to change the assigned tier.
(e)Definition of Damages in Tiering. For purposes of determining the tier for standard discovery, the amount of damages claimed in an action includes all monetary damages sought (without duplication for alternative theories) by all parties in all claims for relief in the original pleadings, but excludes claims for punitive damages, interest, attorney’s fees in the case to be tiered, and costs.
(f)Limits on Discovery. Discovery per side (plaintiffs collectively, defendants collectively, and third-party defendants collectively) in each tier is limited as stated below. The time to complete discovery runs from the date of the Early Meeting, subject to the court’s power to extend the time for completion of discovery for good cause shown.

(1) Tier 1. Each side in a Tier 1 case is permitted 5 total hours of fact witness depositions, 5 Rule 33 interrogatories, 5 Rule 34 requests for production, 10 Rule 36 requests for admission, and 120 days in which to complete discovery.
(2) Tier 2. Each side in a Tier 2 case is permitted 15 total hours of fact witness depositions, 10 Rule 33 interrogatories, 10 Rule 34 requests for production, 10 Rule 36 requests for admission, and 180 days in which to complete discovery.
(3) Tier 3. Each side in a Tier 3 case is permitted 30 total hours of fact witness depositions, 20 Rule 33 interrogatories, 10 Rule 34 requests for production, 20 Rule 36 requests for admission, and 240 days in which to complete discovery.
(g)Obtaining Discovery Beyond Tier Limits.

(1) Generally. To obtain discovery beyond the limits on discovery established in Rule 26.2(f), a party must file either:

(A) a motion for discovery beyond tier limits setting forth why that discovery is necessary and proportional under Rule 26(b)(1), attaching that discovery, or in the case of a request for deposition, describing the anticipated discovery, and attaching a good faith consultation certificate complying with Rule 7.1(h); or
(B) a stipulation that, for each category of discovery for which the limit of discovery has been requested, that discovery beyond tier limits is necessary and proportional under Rule 26(b)(1).

(2) Timing. A motion or stipulation under (1) must be filed before the close of standard discovery and before serving a discovery request that reaches or exceeds the limit imposed by Rule 26.2(f) on any category of discovery.
(3)Effect of Stipulation. A filed “Stipulation for Overlimit Discovery” complying with this rule authorizes the taking of the agreed additional discovery without the necessity for a court order. The court retains the power to disapprove any such stipulation.
(h) Circumstances Requiring Additional Deposition Time or Written Discovery. Despite the total limits on deposition hours set out in Rule 26.2(f)(1)-(3):

(1) in a case with more than one party on a side, the court may for good cause increase a side’s allowed hours for fact witness depositions, allocate the allowed deposition hours among the parties on a side, or take any other action necessary to provide each party on a side with a reasonable opportunity to conduct deposition discovery;
(2) additional examination time ordered for the reasons set forth in Rule 30(d) does not count against the tier limits; and
(3) if the configuration of sides as defined in Rule 26.2(f) provides more deposition time or written discovery to one group of parties with common interests than another group of parties with common interests, the court may for good cause adjust how Rule 26.2(f) allocates the totality of deposition time or written discovery it allows between those sides.
(i)Variations in Expert Discovery by Tier. Unless the parties agree or the court orders otherwise, expert disclosures in Tier 1 or Tier 2 cases are governed by Rule 26.1(d)(3), while expert disclosures in Tier 3 cases are governed by Rule 26.1(d)(4).

Ariz. R. Civ. P. 26.2

Adopted effective January 1, 2017; amended August 31, 2017 and October 12, 2017, effective July 1, 2018; amended August 26, 2020, effective January 1, 2021.

2018 Comment on Rule 26.2

Rule 26.2 establishes a three-tiered system of case management to make discovery occur in a manner that is proportional under Rule 26(b)(1). If neither the parties nor the court seek to actively direct a case toward a tier, the case will receive a tier based upon the amount at issue in the case or requests for nonmonetary relief. However, parties can ask for a different tier, based on the proportionality factors in Rule 26(b)(1). And courts can actively manage cases and to assign a case to a tier at the start of the matter, on their own initiative or based upon their own review of the Rule 16(c) Joint Report, under Rule 26.2(c)(2). Rule 26.2(b) provides many factors for courts to use in determining the tier to which a case is best suited.

However, making discovery proportional is not an end in itself. Rules 8, 26, 26.1, 26.2, and 37, as now revised, work together to strengthen mandatory initial disclosure of relevant material as the bedrock of Arizona civil litigation. Rule 26.2 now emphasizes keeping discovery proportional based on the understanding that proportional discovery follows up on robust initial disclosure under Rule 26.1. The 2018 amendments seek to make initial disclosure robust through a clearer mandate to impose sanctions under Rule 37 for failures to disclose relevant material and for abuses of discovery.