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Rule 26 – General Provisions Governing Discovery

May 13, 2021 | Civil Procedure, Mississippi

(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions 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; and requests for admission. Unless the court orders otherwise under subdivisions (c) or (d) of this rule, the frequency of use of these methods is not limited.
(b) 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 matter, not privileged, which is relevant to the issues raised by the claims or defenses of any party. The discovery may include the existence, description, nature, custody, condition and location of any books, documents, electronically stored information, or other tangible things; and the identity and location of persons (i) having knowledge of any discoverable matter or (ii) who may be called as witnesses at the trial. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
(2) Insurance Agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement.
(3)Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(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 that party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of that party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering 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. Rule 37(a)(4) applies to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is:

a written statement signed or otherwise adopted or approved by the person making it, or 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.

(4)Trial Preparations: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under subsection (b)(1) of this rule may be obtained only as follows:

(A)

(i) A requesting party may, through interrogatories, require any other party to identify any witness whom the responding party expects to call as a witness at trial to present evidence under Mississippi Rule of Evidence 702, 703, or 705.
(ii) Ifsuch witness has been retained or specially employed to provide expert testimony, the requesting party may, through interrogatories, require the responding party to state the subject matter on which the expert is expected to testify; the substance of the facts and opinions to which the expert is expected to testify; a summary of the grounds for each opinion; the facts or data considered by the witness in forming the opinions, regardless of when and how the facts or data were made known to the witness; any exhibits that will be used to summarize or support the opinions; the witness’s qualifications, including a list of all publications authored by the witness in the previous ten years; a list of cases in which, during the previous ten years, the witness testified as an expert at trial or by deposition; and, for retained experts, a statement of the compensation to be paid for the study and testimony in the case.
(iii) If such witness has not been retained or specially employed to provide expert testimony, the requesting party may, through interrogatories, require the responding party to state the subject matter on which the witness is expected to present evidence under Mississippi Rule of Evidence 702, 703, or 705; and a summary of the facts and opinions to which the witness is expected to testify.
(iv) A party may depose any person who has been identified as a witness who will present evidence at trial under Mississippi Rule of Evidence 702, 703 or, 705. Such expert depositions shall not be taken until the party desiring to depose such expert has received interrogatory responses concerning such expert’s expected testimony.
(B) A party may discover facts known or opinions held by an expert who has been retained or speciallyemployed byanother party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial only 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) Rule 26(b)(3) protects drafts of any interrogatory responses required under Rule 26(b)(4)(A)(ii) or other expert disclosures regardless of the form in which the draft is recorded.
(D) Rule 26(b)(3) protects communications between the party’s lawyer or representative of the lawyer and any expert witness who has been retained or specially employed to present evidence at trial under Mississippi Rules of Evidence 702, 703 or 705, 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 upon in forming the opinions to be expressed. For purposes of this rule, a “representative of the lawyer” is one employed by the lawyer to assist the lawyer in the rendition of professional legal services.
(E) Unless manifest injustice would result, the court shall require the party taking the deposition of an opposing party’s expert who has been specially retained or employed to present expert testimony at trial to pay the expert a reasonable fee for time spent giving deposition testimony and a reasonable fee for up to two hours actually spent preparing for such deposition. With respect to discovery obtained under subsection (b)(4)(B) of this rule, the court shall require the party seeking discovery: (i) to pay the expert a reasonable fee for time spent in responding to such discovery; and (ii) to pay the party who retained or specially employed the expert a fair portion of the fees and expenses reasonably incurred by such party in obtaining the facts and opinions from the expert.
(5)Specific Limitations on Discovery of Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discoveryfrom such sources if the requesting party shows good cause, considering the concerns of Rule 26(d)(2). The court may specify conditions for the discovery. Such conditions may include: (i) limiting the frequency or extent of electronic discovery; (ii) requiring the discovery to be conducted in stages with progressive showings by the requesting party of a need for additional information; (iii) limiting the sources of electronicallystored information to be accessed or searched; (iv) limiting the amount or type of electronically stored information to be produced; (v) modifying the form in which the electronically stored information is to be produced; (vii) requiring a sample production of some of the electronically stored information to determine whether additional production is warranted; and (vii) allocating to the requesting party some or all of the cost of producing electronically stored information that is not reasonably accessible because of undue burden or cost.
(6)Claiming Privilege or Protecting Trial-Preparation Materials.

(A)Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, electronically stored information, or tangible things not produced or disclosed-and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
(B)Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the partymaking the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.
(c) Discovery Conference. At any time after the commencement of the action, the court may hold a conference on the subject of discovery, and shall do so if requested by any party. The request for discovery conference shall certify that counsel has conferred, or made reasonable effort to confer, with opposing counsel concerning the matters set forth in the request, and shall include:

1. a statement of the issues to be tried;
2. a plan and schedule of discovery;
3. limitations to be placed on discovery, if any; and
4. other proposed orders with respect to discovery.

Any objections or additions to the items contained in the request shall be served and filed no later than ten days after service of the request.

Following the discovery conference, the court shall enter an order fixing the issues; establishing a plan and schedule of discovery; setting limitations upon discovery, if any; and determining such other matters, including the allocation of expenses, as are necessary for the proper management of discovery in the case.

Subject to the right of a party who properly moves for a discovery conference to prompt convening of the conference, the court may combine the discovery conference with a pretrial conference authorized by Rule 16.

The court may impose sanctions for the failure of a party or counsel without good cause to have cooperated in the framing of an appropriate discovery plan by agreement. Upon a showing of good cause, any order entered pursuant to this subdivision may be altered or amended.

(d) Protective Orders.

(1) In General. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending, or in the case of a deposition the court that issued a subpoena therefor, may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including, but not limited to, one or more of the following:

(A) that the discovery not be had;
(B) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;
(C) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
(D) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
(E) that discovery be conducted with no one present except persons designated by the court;
(F) that a deposition after being sealed to be opened only by order of the court;
(G) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;
(H) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court;
(I) that payment of some or all of the expenses attendant upon such deposition or other discovery device be made by the party seeking same.
(2)Limiting Discovery. In determining whether to enter an order limiting the frequency or extent of discovery, the court may consider, among other things, whether 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; whether the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; and whether the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving those issues.
(3)Ordering Discovery. 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.
(4)Awarding Expenses. Rule 37(a)(4) applies to the award of expenses incurred in relation to the motion.
(e) 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.
(f) 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 the response to include information thereafter acquired, except as follows:

(1)In General. A party who has made an expert disclosure or who has responded to an interrogatory, request for production, or request for admission must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or
(B) as ordered by the court.
(2)Expert Witness. With respect to any expert witness who has been retained or specially employed to present evidence at trial under Mississippi Rules of Evidence 702, 703, or 705, the party’s duty to supplement in a timely manner extends to information included in any disclosure of that expert’s expected testimony, including information given in response to an expert interrogatory, information provided in an expert disclosure, and information given during an expert’s deposition.
(g)Signing Discovery Requests, Responses, and Objections.

(1)Signature Required: Effect of Signature. Every discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name-or by the party personally, if unrepresented-and must state the signer’s address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry, with respect to a discovery request, response, or objection, it is:

(A) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;
(B) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
(C) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.
(2)Failure to Sign. Other parties have no duty to act on an unsigned reguest, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney’s or party’s attention.
(3)Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.

Miss. R. Civ. P. 26

Amended effective March 1, 1989;March 13, 1991;April 13, 2000. Amended effective May 29, 2003 to add Rule 26(5) addressing discovery of electronic data. Amended November 7, 2019, effective January 1, 2020.

Advisory Committee Historical Note

Effective January 1. 2020, M.R.C.P. 26 was amended so as to include subparagraph (g).

Effective January 1. 2020, Rule 26(b) was amended. Rule 26(b)(4) was amended so as to provide for two-tiered discovery regarding witnesses who will offer expert testimony at trial. The amended rule authorizes more detailed interrogatories concerning expert witnesses who are retained or specially employed and more general interrogatories concerning other witnesses who will provide expert testimony. The amendment also authorizes depositions of any witness who will provide expert testimony at trial. Rule 26(b) was amended so that certain communications between a party and a party’s expert who has been retained or specially employed to provide expert testimony at trial are deemed trial preparation material. Rule 26(b)(5) governing discovery of electronically stored information was amended so as to refer to “electronically stored information” rather than “data or information in electronic or magnetic form.” The amendment also provides a nonexhaustive list of the types of conditions a judge may place on electronic discovery. Rule 26(b) was further amended so as to include subsection (6), which requires a responding party to generally describe information withheld from discovery based an allegation of privilege or trial preparation material and established a process to deal with inadvertent production of privileged or trial preparation material.

Effective May 29, 2003, Rule 26(b) was amended by adding subsection (5) governing discovery of data or information in electronic or magnetic form.

Effective April 13, 2000, Rule 26(c) was amended to allow the court on its own motion to convene a discovery conference, 753-754 So. 2d XVII (West Miss.Cas. 2000).

Effective March 13, 1991, Rule 26(b)(1)(ii) was amended to delete the oral testimony of witnesses from the listing of matter that might be discovered by a party. Rule 26(d) was amended to provide that in the case of depositions protective orders might be made by the court that issued a subpoena therefor. 574-576 So. 2d XXIII (West Miss. Cas. 1991).

Effective March 1, 1989, Rule 26(b)(1) and Rule 26(f)(1) were amended to provide for the identification of (and supplementation of the prior identification of) those, in addition to experts, who may be called as witnesses at the trial. 536-538 So. 2d XXIV (West Miss. Cas. 1989).

Advisory Committee Notes

Rule 26(b)(2)limits discovery to “any matter, not privileged, which is relevant to the issues raised by the claims or defenses of any party.” Earlier precedent authorized discovery of any matter, not privileged, relevant to the “subject matter” of the case. The current rule limiting discovery to the issues raised by any claim or defense was intended to narrow the scope of discovery.

Rule 26(b)(4)(A) establishes a two-tiered procedure for discovery concerning witnesses who will provide expert testimony at trial. With respect to retained and specially employed expert witnesses who are expected to testify at trial, the rule authorizes more detailed interrogatories than those permitted concerning other expert witnesses expected to testify at trial because a party can expect retained and specially employed expert witnesses to fully cooperate during discovery and trial. Thus, the rule authorizes interrogatories requesting not only a statement of the opinions the expert is expected to off er and the basis and reasons therefore, but also a statement of the facts and data considered, not just those relied upon, by the expert as well as information concerning the witness’s qualifications, publications and previous expert testimony. Although Rule 26(b)(4)(A)(ii) authorizes interrogatories concerning exhibits that will be used to support or illustrate a retained or specially employed expert witness’s opinion expected to be offered at trial, a complete response to such an interrogatory may not be possible until closer to trial because some such exhibits may not be created until they are actually needed for trial. Thus, a response or supplemented response concerning such exhibits should not be deemed untimely if it was reasonably made in advance of trial. Rule 26(b)(4)(A)(iii) establishes a more limited scope for interrogatories concerning expert witnesses who were not retained or specially employed but who are expected to testify at trial. Treating physicians and public accident investigators will often offer expert testimony at trial even though they have not been retained or specially employed by a party. The more limited duty to respond to interrogatories concerning this category of experts is based upon the recognition that some such witnesses may not fully cooperate with the party who intends to call them at trial thereby making it difficult or impossible for the party intending to call such witness at trial to fully and adequately respond to interrogatories reguesting the more detailed information that is discoverable with respect to retained or specially employed expert witnesses expected to testify at trial. A response under Rule 26{b)(4 )(A)(iii) is sufficient if it gives reasonable notice of the expert’s testimony, taking into account the limitations of the party’s knowledge of the facts known by and the opinions held by the expert.

Rule 26(b)(4)(C) & (D) grant trial preparation material or “work product” protection to draft responses to expert interrogatories, drafts of expert disclosures, and certain communications between the lawyer and the expert {or between the representative of the lawyer and the expert) in an effort to avoid costly. and oftentimes inefficient. discovery and to encourage more open and robust communication between the attorney and expert so that the attorney and expert may come to a better mutual understanding of the case. The protection is not absolute. Discovery may be had in the three excepted areas. In addition, pursuant to Rule 26(b)(3), a party may overcome the trial preparation material protection by showing a substantial need for the material in preparation of the case and an inability to obtain the substantial equivalent without undue hardship. The protection is not meant to foreclose inquiry into whether the expert explored other theories in the case at hand: whether the expert has ever explored other theories that were not explored in the case at hand, and if so why such theories were not explored in the case at hand: whether the expert considered any facts which were not relied upon and, if so. why such facts were not relied upon: whether any tests were run or models developed other than those disclosed in interrogatory responses and the results of such tests and/or models: and whether anybody other than the party’s attorney provided support or participation in framing the opinion.

Rule 26(b)(5) governs discovery of electronically stored information and provides that a party may initially refuse to produce electronically stored information from a source that is not reasonably accessible because of undue burden or cost. The rule further provides, however, that a court may grant a motion to compel discovery from such sources upon a showing of good cause after taking into account factors such as the burden. expense and likely benefit of such discovery. The rule explicitly authorizes a court to order the requesting party to pay for some or all of the costs associated with discovery of electronically stored information from a source that is not reasonably accessible.

Rule26(b)(5) requires a party withholding information based on a claim of privilege or trial preparation material to generally describe such information so as to enable the requesting party to assess the claim. It also establishes a procedure to govern inadvertent disclosure of privileged or trial preparation material.

Rule 26(c) authorizes the court to hold a discovery conference and thereafter enter an order governing discovery. The rule grants the court discretion to limit discovery and to allocate some or all of the expense of discovery to the reguesting party when appropriate.

Rule 26(d) grants a court discretion to enter a protective order, among other things, prohibiting or limiting discovery after considering factors such as burden, cost, and likely benefit of such discovery.

Rule 26(f) imposes a duty to supplement. The duty to supplement, while imposed on a party, applies whether the additional or corrective information is learned by the client or by the attorney. Supplementations need not be made as each new item of information is learned but should be made at appropriate intervals during the discovery period, and with special promptness as the trial date approaches. It may be useful for any scheduling order to specify the time or times when supplementations should be made. The obligation to supplement responses to formal discovery requests applies to interrogatories, requests for production, and requests for admissions, but not ordinarily to deposition testimony. However, with respect to retained or specially employed experts, changes in the opinions expressed by the expert, whether in response to an interrogatory, an expert disclosure, or a deposition, are subject to a duty of supplemental disclosure. The obligation to supplement applies whenever a party learns that its prior disclosures or responses are in some material respect incomplete or incorrect. There is, however, no obligation to provide supplemental or corrective information that has been otherwise made known to the parties in writing or during the discovery process, as when a witness not previously disclosed is identified during the taking of a deposition or when an expert during a deposition corrects information contained in an earlier report.

M.R.C.P. 26(g) imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and pumoses of Rules 26 through 3 7. In addition. Rule 26(g) is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions. The subdivision provides a deterrent to both excessive discoverv and evasion bv imposing a certification requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an obiection. The term “response” includes answers to interrogatories and to requests to admit as well as responses to production requests.

If primary responsibilityfor conducting discoveryis to continue to rest with the litigants, they must be obliged to act responsibly and avoid abuse. Although the certification duty requires the lawyer to pause and consider the reasonableness of his request, response, or objection, it is not meant to discourage or restrict necessary and legitimate discovery. The rule simply requires that the attorney make a reasonable inquiry into the factual basis of his response, request, or objection.

The duty to make a “reasonable inquiry” is satisfied if the investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances. It is an objective standard similar to the one imposed by Rule 11. In making the inquiry, the attorney may rely on assertions bv the client and on communications with other counsel in the case as long as that reliance is appropriate under the circumstances. Ultimately, what is reasonable is a matter for the court to decide on the totality of the circumstances.

M.R.C.P. 26(g) does not require the signing attorney to certify the truthfulness of the client’s factual responses to a discovery request. Rather, the signature certifies that the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand Thus, the lawyer’s certification under M.R.C.P. 6(g) should be distinguished from the requirement that a responding party must sign interrogatory responses under oath pursuant to M.R.C.P. 33(b).

Nor does the rule require a party or an attorney to disclose privileged communications or work product in order to show that a discovery request, response, or objection is substantially justified. The signing requirement means that everydiscoveryrequest, response, or objection should be grounded on a theory that is reasonable under the precedents or a good faith belief as to what should be the law. This standard is heavily dependent on the circumstances of each case. The certification speaks as of the time it is made. The duty to supplement discovery responses continues to be governed by M.R.C.P. 26(e).

The premise of Rule 26(g) is that imposing sanctions on attorneys who fail to meet the rule’s standards will significantlyreduce abuse byimposing disadvantages therefor. The rule mandates that sanctions be imposed on attorneys who fail to meet the standards established in the first portion of Rule 26(g). The nature of the sanction is a matter of judicial discretion to be exercised in light of the particular circumstances. The sanctioning process must comport with due process requirements. The kind of notice and hearing required will depend on the facts of the case and the severity of the sanction being considered. To prevent the proliferation of the sanction procedure and to avoid multiple hearings, discovery in any sanction proceeding normally should be permitted only when it is clearly required by the interests of justice. In most cases the court will be aware of the circumstances and only a brief hearing should be necessary.

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