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Rule 26 – General Provisions Governing Discovery

May 15, 2021 | Delaware, Family Law

(a) Motion required. While the Court encourages the prompt and voluntary exchange of information and documents by parties before trial, no formal discovery shall be conducted without Court order following a motion therefor except for depositions of the parties in the case or any third parties and Requests for Production to the parties in the case or any third party. Notice of depositions and Requests for Production must be served on each party.
(b) Procedure upon motion. A motion for discovery shall specify with particularity the need therefor. The party from whom discovery is sought may within 10 days after service of the motion file written objection to the allowance of such discovery. The Court shall then rule upon the motion without briefing or oral argument unless ordered by the Court.
(c) Relation to other rules. A party conducting or seeking to conduct discovery with respect to financial matters shall promptly and fully comply with Rules 16(a) and 16(c) and shall file with the Court, in a timely fashion, the required portion of the forms promulgated under such rules. Failure of the party from whom discovery is sought to comply with discovery, while subject to other sanctions by the Court, shall not excuse the party seeking discovery from timely compliance with Rule 16(a) and 16(c).
(d) Contents of order. An order authorizing discovery may prescribe the manner, time, conditions and any restrictions respecting the same.
(e) Retain discovery. Discovery, when permitted, shall accord with Rules 26(a) through 37, inclusive, except that the discovery and its product, after service, shall be retained by the parties and shall not be filed with the Court without further Court order.
(f) Discovery methods. When discovery is permitted by the Court, parties may obtain discovery by one or more of the following methods: Deposition upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admissions. Unless the Court orders otherwise under subdivisions (d) and (h) of this Rule, the frequency of use of these methods is not limited.
(g) Scope of discovery. Unless otherwise limited by order of the Court in accordance with these Rules, the scope of discovery is as follows:

(1) In general. Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. Consideration shall be given to 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) Trial preparation: Materials. Subject to the provisions of subdivision (g)(3) of this Rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (g)(1) of this Rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative, including an attorney, consultant, surety, indemnitor, insurer, or agent, only upon a showing that the party seeking discovery has substantial need of the materials in case preparation and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering the discovery of such materials when the required showing has been made, the Court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

(3) Trial preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (g)(1) of this Rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A)

(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the ground for each opinion.
(ii) Upon motion, the Court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (g)(3)(C) of this Rule, concerning fees and expenses as the Court may deem appropriate.
(B) A party may 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 only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
(C) Unless manifest injustice would result, (i) the Court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivision (g)(3)(A)(ii) and (g)(3)(B) of this Rule; and (ii) with respect to discovery obtained under subdivision (g)(3)(A)(ii) of this Rule the Court may require, and with respect to discovery obtained under subdivision (g)(3)(B) of this Rule the Court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
(h) Protective orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the Court or alternatively, on matters relating to a deposition taken outside the State of Delaware, a court in the state where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(1) That the discovery not be had;
(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place or the allocation of expenses;
(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
(5) that discovery be conducted with no one present except persons designated by the Court;
(6) that a deposition after being sealed be opened only by order of the Court;
(7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;
(8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the Court.

If the motion for a protective order is denied in whole or in part, the Court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

A motion filed pursuant to this subdivision must include a certification or affidavit 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.

(i) Sequence and timing of discovery. Unless the Court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party’s discovery.
(j) Supplementation of responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:

(1) A party is under a duty seasonably to supplement a response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the expert witness is expected to testify, and the substance of the testimony.
(2) A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which (A) the party knows that the response was incorrect when made, or (B) the party knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
(3) A duty to supplement responses may be imposed by order of the Court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.

Del. Fam. Ct. R. Civ. P. 26

Amended June 14, 2020, effective September 1, 2020.