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Rule 26 – General Provisions Governing Discovery; Duty of Disclosure.

May 14, 2021 | Civil Procedure, Rhode Island

(a) Discovery Methods.

(1)In General. Parties may obtain discovery by one (1) or more of the following methods: depositions upon oral examinations or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property under Rule 34 or 45(a) for inspection and other purposes; physical and mental examinations; and requests for admission. In accordance with Rule 5(d), discovery requests and responses shall not be filed with the court until they are used in the proceeding or the court orders their filing.
(2)Electronically Stored Information.

(A) In these rules:

(i) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities; and
(ii) “Electronically stored information” means information stored in an electronic medium and is retrievable in perceivable format.
(B) If the parties so agree or if the court so orders upon motion by any party, all parties that have appeared in the proceeding shall confer concerning whether discovery of electronically stored information is reasonably likely to be sought in the proceeding. If discovery of electronically stored information is reasonably likely to be sought, the parties at the conference shall discuss:

(i) Any issues relating to preservation of the information;
(ii) The format in which each type of the information will be produced;
(iii) The period within which the information will be produced;
(iv) The method for asserting or preserving claims of privilege or of protection of the information as trial preparation materials, including whether such claims may be asserted after production;
(v) The method for asserting or preserving confidentiality and proprietary status of information relating to a party or a person not a party to the proceeding;
(vi) Whether allocation among the parties of the expense of production is appropriate; and
(vii) Any other issue relating to discovery of the information.
(C) If discovery of electronically stored information is reasonably likely to be sought, then:

(i) The parties shall develop and memorialize a proposed plan relating to discovery of the information; and
(ii) If the court so orders, submit to the court a written report that summarizes the plan and states the position of each party as to any issue about which they are unable to agree.
(D) The court may issue an order governing the discovery of electronically stored information pursuant to:

(i) A motion by a party seeking discovery of the information or by a party or person from which discovery of the information is sought;
(ii) A stipulation of the parties and of any person not a party from which discovery of the information is sought; or
(iii) The court’s own motion, after reasonable notice to, and an opportunity to be heard from, the parties and any person not a party from which discovery of the information is sought.
(E) An order or plan governing discovery of electronically stored information may address:

(i) Whether discovery of the information is reasonably likely to be sought in the proceeding;
(ii) Preservation of the information;
(iii) The format in which each type of the information is to be produced;
(iv) The time within which the information is to be produced;
(v) The permissible scope of discovery of the information;
(vi) The method for asserting or preserving claims of privilege or of protection of the information as trial-preparation material after production;
(vii) The method for asserting or preserving confidentiality and the proprietary status of information relating to a party or a person not a party to the proceeding;
(viii) Allocation of the expense of production; and
(ix) Any other issue relating to discovery of the information.
(F) Any motion under Rule 26(a)(2) must include a certification that the movant has in good faith conferred or attempted to confer with the other party or parties in an effort to agree upon a plan relating to the discovery of electronically stored information without court action.
(b)Discovery: Scope and Limits. 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 subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any documents, electronically stored information, or tangible things and the identity and location of persons having knowledge of any discoverable matter. 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.

The frequency or extent of use of the discovery methods set forth in these rules shall be limited by the court if it determines that:

(A) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;
(B) The party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or
(C) The discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, the parties’ resources, and the importance of the issues at stake in the litigation. The court may act upon its own initiative after reasonable notice or pursuant to a motion under subdivision (c).
(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 the other 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 the 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. 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.
(4)Trial Preparation: Experts.

(A) 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, to state the substance of the facts and opinions to which the expert is expected to testify, and to summarize the grounds for each opinion. A party may, through a request for production pursuant to Rule 34, a request attached to a notice of deposition pursuant to Rule 30(b)(5), or subpoena duces tecum pursuant to Rule 45, require any other party to produce all documents and materials relied upon by a person whom the other party expects to call as an expert witness at trial in formulating that expert’s opinion(s). If documents and materials are requested, the procedures of Rules 34 and 45, respectively, shall apply to the request. A party may depose any person who has been identified as an expert expected to testify when the expert interrogatory has been responded to by the other party. Unless otherwise ordered by the court, the party seeking to depose the expert shall pay the expert the reasonable fee for the time spent attending the deposition and the reasonable expenses incurred in attending the deposition. In the absence of agreement between the parties as to the timing of disclosures required under this subdivision, any party may apply to the court for an order establishing a schedule of such interrogatories, responses, and depositions. Obligation to respond to interrogatories shall be stayed until the ruling on the application.
(B) A party may discover facts known and 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 this subdivision; and
(ii) With respect to discovery obtained under subdivision (b)(4)(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.
(D) These rules protect communications between the party’s attorney and any witness designated as an expert under these rules, 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 relied on 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.
(5)Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
(6)Electronically Stored Information.

(A) A party may object to discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or expense. In the party’s objection, the party shall identify the reason for the undue burden or expense. On motion to compel discovery or for a protective order relating to the discovery of electronically stored information, a party objecting to discovery under Rule 26(b)(6) bears the burden of showing that the information is from a source that is not reasonably accessible because of undue burden or expense.
(B) The court may order discovery of electronically stored information that is from a source that is not reasonably accessible because of undue burden or expense if the party requesting discovery shows that the likely benefit of the proposed discovery outweighs the likely burden or expense, taking into account the amount in controversy, the resources of the parties, the importance of the issues, and the importance of the requested discovery in resolving the issues.
(C) If the court orders discovery of electronically stored information under paragraph (B), the court may set conditions for discovery of the information, including allocation of the expense of discovery.
(D) The court shall limit the frequency or extent of discovery of electronically stored information, even from a source that is reasonably accessible, if the court determines that:

(i) The information may be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) The discovery sought is unreasonably cumulative or duplicative;
(iii) The party seeking discovery has had ample opportunity by discovery in the proceeding to obtain the information sought; or
(iv) The likely burden or expense of the proposed discovery outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues, and the importance of the requested discovery in resolving the issues.
(7)Claim of Privilege or Protection after Production of Electronically Stored Information.

(A) If electronically stored information produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for the claim.
(B) After being notified of a claim of privilege or of protection under paragraph (A), a party shall immediately sequester the specified information and any copies it has and:

(i) Return or destroy the information and all copies and not use or disclose the information until the claim is resolved; or
(ii) Present the information to the court under seal for a determination of the claim
(C) If a party that received notice under paragraph (B) disclosed the information subject to the notice before being notified, the party shall take reasonable steps to retrieve the information.
(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification 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, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the county 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 disclosure or discovery not be had;
(2) That the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place;
(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 disclosure or 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 revealed or be revealed only in a designated way; and
(8) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

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

(d) 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.
(e)Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under a duty to supplement the response to include information thereafter acquired under the following circumstances:

(1) A party is under a duty seasonably to supplement his 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 person is expected to testify, and the substance of the person’s 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 or complete 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.
(4) A party is under a continuing duty to furnish answers to interrogatories as provided in Rule 33(c).
(f)Signing of Discovery Requests, Responses, and Objections. Every discovery request, response, or objection made by a party represented by an attorney shall be signed by at least one (1) attorney of record, other than responses that must be signed by the party, in the attorney’s individual name and shall state the attorney’s, address, email address, bar number, and telephone number. A self-represented litigant shall sign the request, response, or objection and state the self-represented litigant’s address, email address (if electing to utilize the EFS), and telephone number. The signature of the attorney, party, or self-represented litigant constitutes a certification that to the best of the signer’s knowledge, information, and belief, formed after a reasonable inquiry, the request, response, or objection is:

(1) Consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;
(2) Not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and
(3) Not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.

If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response, or objection, and a party shall not be obligated to take any action with respect to it until it is signed.

If without substantial justification a certification is made in violation of the rule, the court, upon motion or upon its own initiative, may impose upon the person who made the certification, the party on whose behalf the disclosure, request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney’s fee.

R.I. Super. Ct. R. Civ. P. 26

Amended November 6, 2017, effective November 6, 2017; Amended effective December 10, 2020.