This document includes House Committee Amendments incorporated into the bill on Fri, Mar 6, 2020 at 11:51 AM by naomigarrow.
1     
JOINT RESOLUTION AMENDING RULES OF CIVIL

2     
PROCEDURE ON EXPERT WITNESSES

3     
2020 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: Michael K. McKell

6     
Senate Sponsor: Kirk A. Cullimore

7     

8     LONG TITLE
9     General Description:
10          This joint resolution amends the Utah Rules of Civil Procedure, Rule 26, regarding
11     discovery obtained from an expert witness.
12     Highlighted Provisions:
13          This resolution:
14          ▸     amends the Utah Rules of Civil Procedure, Rule 26, regarding a party's duty to pay
15     an expert witness's hourly fee for attendance at a deposition; and
16          ▸     makes technical and conforming changes.
17     Special Clauses:
18          This resolution provides a special effective date.
19     Utah Rules of Civil Procedure Affected:
20     AMENDS:
21          Rule 26, Utah Rules of Civil Procedure
22     

23     Be it resolved by the Legislature of the state of Utah, two-thirds of all members elected to each
24     of the two houses voting in favor thereof:
25          As provided in Utah Constitution Article VIII, Section 4, the Legislature may amend
26     rules of procedure and evidence adopted by the Utah Supreme Court upon a two-thirds vote of
27     all members of both houses of the Legislature:

28          Section 1. Rule 26, Utah Rules of Civil Procedure is amended to read:
29          Rule 26. General provisions governing disclosure of discovery.
30          (a) Disclosure. This rule applies unless changed or supplemented by a rule governing
31     disclosure and discovery in a practice area.
32          
(a) (1) Initial disclosures. Except in cases exempt under paragraph (a)(3), a party
33     shall, without waiting for a discovery request, serve on the other parties:
34          (a) (1) (A) the name and, if known, the address and telephone number of:
35          (a) (1) (A) (i) each individual likely to have discoverable information supporting its
36     claims or defenses, unless solely for impeachment, identifying the subjects of the information;
37     and
38          (a) (1) (A) (ii) each fact witness the party may call in its case-in-chief and, except for
39     an adverse party, a summary of the expected testimony;
40          (a) (1) (B) a copy of all documents, data compilations, electronically stored
41     information, and tangible things in the possession or control of the party that the party may
42     offer in its case-in-chief, except charts, summaries and demonstrative exhibits that have not yet
43     been prepared and must be disclosed in accordance with paragraph (a)(5);
44          (a) (1) (C) a computation of any damages claimed and a copy of all discoverable
45     documents or evidentiary material on which such computation is based, including materials
46     about the nature and extent of injuries suffered;
47          (a) (1) (D) a copy of any agreement under which any person may be liable to satisfy
48     part or all of a judgment or to indemnify or reimburse for payments made to satisfy the
49     judgment; and
50          (a) (1) (E) a copy of all documents to which a party refers in its pleadings.
51          (a) (2) Timing of initial disclosures. The disclosures required by paragraph (a)(1)
52     shall be served on the other parties:
53          (a) (2) (A) by the plaintiff within 14 days after filing of the first answer to the
54     complaint; and
55          (a) (2) (B) by the defendant within 42 days after filing of the first answer to the
56     complaint or within 28 days after that defendant's appearance, whichever is later.
57          (a) (3) Exemptions.
58          (a) (3) (A) Unless otherwise ordered by the court or agreed to by the parties, the

59     requirements of paragraph (a)(1) do not apply to actions:
60          (a) (3) (A) (i) for judicial review of adjudicative proceedings or rule making
61     proceedings of an administrative agency;
62          (a) (3) (A) (ii) governed by Rule 65B or Rule 65C;
63          (a) (3) (A) (iii) to enforce an arbitration award;
64          (a) (3) (A) (iv) for water rights general adjudication under Title 73, Chapter 4,
65     Determination of Water Rights.
66          (a) (3) (B) In an exempt action, the matters subject to disclosure under paragraph (a)(1)
67     are subject to discovery under paragraph (b).
68          (a) (4) Expert testimony.
69          (a) (4) (A) Disclosure of expert testimony. A party shall, without waiting for a
70     discovery request, serve on the other parties the following information regarding any person
71     who may be used at trial to present evidence under Rule 702 of the Utah Rules of Evidence and
72     who is retained or specially employed to provide expert testimony in the case or whose duties
73     as an employee of the party regularly involve giving expert testimony: (i) the expert's name and
74     qualifications, including a list of all publications authored within the preceding 10 years, and a
75     list of any other cases in which the expert has testified as an expert at trial or by deposition
76     within the preceding four years, (ii) a brief summary of the opinions to which the witness is
77     expected to testify, (iii) all data and other information that will be relied upon by the witness in
78     forming those opinions, and (iv) the compensation to be paid for the witness's study and
79     testimony.
80          (a) (4) (B) Limits on expert discovery. Further discovery may be obtained from an
81     expert witness either by deposition or by written report. A deposition shall not exceed four
82     hours and the party taking the deposition shall pay the expert's reasonable hourly fees for
83     attendance at the deposition. A report shall be signed by the expert and shall contain a complete
84     statement of all opinions the expert will offer at trial and the basis and reasons for them. Such
85     an expert may not testify in a party's case-in-chief concerning any matter not fairly disclosed in
86     the report. The party offering the expert shall pay the costs for the report.
87          (a) (4) (C) Timing for expert discovery.
88          (a) (4) (C) (i) The party who bears the burden of proof on the issue for which expert
89     testimony is offered shall serve on the other parties the information required by paragraph

90     (a)(4)(A) within seven days after the close of fact discovery. Within seven days thereafter, the
91     party opposing the expert may serve notice electing either a deposition of the expert pursuant to
92     paragraph (a)(4)(B) and Rule 30, or a written report pursuant to paragraph (a)(4)(B). The
93     deposition shall occur, or the report shall be served on the other parties, within 28 days after the
94     election is served on the other parties. If no election is served on the other parties, then no
95     further discovery of the expert shall be permitted.
96          (a) (4) (C) (ii) The party who does not bear the burden of proof on the issue for which
97     expert testimony is offered shall serve on the other parties the information required by
98     paragraph (a)(4)(A) within seven days after the later of (A) the date on which the election
99     under paragraph (a)(4)(C)(i) is due, or (B) receipt of the written report or the taking of the
100     expert's deposition pursuant to paragraph (a)(4)(C)(i). Within seven days thereafter, the party
101     opposing the expert may serve notice electing either a deposition of the expert pursuant to
102     paragraph (a)(4)(B) and Rule 30, or a written report pursuant to paragraph (a)(4)(B). The
103     deposition shall occur, or the report shall be served on the other parties, within 28 days after the
104     election is served on the other parties. If no election is served on the other parties, then no
105     further discovery of the expert shall be permitted.
106          (a) (4) (C) (iii) If the party who bears the burden of proof on an issue wants to
107     designate rebuttal expert witnesses it shall serve on the other parties the information required
108     by paragraph (a)(4)(A) within seven days after the later of (A) the date on which the election
109     under paragraph (a)(4)(C)(ii) is due, or (B) receipt of the written report or the taking of the
110     expert's deposition pursuant to paragraph (a)(4)(C)(ii). Within seven days thereafter, the party
111     opposing the expert may serve notice electing either a deposition of the expert pursuant to
112     paragraph (a)(4)(B) and Rule 30, or a written report pursuant to paragraph (a)(4)(B). The
113     deposition shall occur, or the report shall be served on the other parties, within 28 days after the
114     election is served on the other parties. If no election is served on the other parties, then no
115     further discovery of the expert shall be permitted.
116          (a) (4) (D) Multiparty actions. In multiparty actions, all parties opposing the expert
117     must agree on either a report or a deposition. If all parties opposing the expert do not agree,
118     then further discovery of the expert may be obtained only by deposition pursuant to paragraph
119     (a)(4)(B) and Rule 30.
120          (a) (4) (E) Summary of non-retained expert testimony. If a party intends to present

121     evidence at trial under Rule 702 of the Utah Rules of Evidence from any person other than an
122     expert witness who is retained or specially employed to provide testimony in the case or a
123     person whose duties as an employee of the party regularly involve giving expert testimony, that
124     party must serve on the other parties a written summary of the facts and opinions to which the
125     witness is expected to testify in accordance with the deadlines set forth in paragraph (a)(4)(C).
126     A deposition of such a witness may not exceed four hours and Ĥ→ , unless manifest injustice
126a     would result, ←Ĥ the party taking the deposition
127     shall pay the expert's reasonable hourly fees for attendance at the deposition.
128          (a) (5) Pretrial disclosures.
129          (a) (5) (A) A party shall, without waiting for a discovery request, serve on the other
130     parties:
131          (a) (5) (A) (i) the name and, if not previously provided, the address and telephone
132     number of each witness, unless solely for impeachment, separately identifying witnesses the
133     party will call and witnesses the party may call;
134          (a) (5) (A) (ii) the name of witnesses whose testimony is expected to be presented by
135     transcript of a deposition and a copy of the transcript with the proposed testimony designated;
136     and
137          (a) (5) (A) (iii) a copy of each exhibit, including charts, summaries and demonstrative
138     exhibits, unless solely for impeachment, separately identifying those which the party will offer
139     and those which the party may offer.
140          (a) (5) (B) Disclosure required by paragraph (a)(5) shall be served on the other parties
141     at least 28 days before trial. At least 14 days before trial, a party shall serve and file counter
142     designations of deposition testimony, objections and grounds for the objections to the use of a
143     deposition and to the admissibility of exhibits. Other than objections under Rules 402 and 403
144     of the Utah Rules of Evidence, objections not listed are waived unless excused by the court for
145     good cause.
146          (b) Discovery scope.
147          (b) (1) In general. Parties may discover any matter, not privileged, which is relevant to
148     the claim or defense of any party if the discovery satisfies the standards of proportionality set
149     forth below. Privileged matters that are not discoverable or admissible in any proceeding of any
150     kind or character include all information in any form provided during and created specifically
151     as part of a request for an investigation, the investigation, findings, or conclusions of peer

152     review, care review, or quality assurance processes of any organization of health care providers
153     as defined in the Utah Health Care Malpractice Act for the purpose of evaluating care provided
154     to reduce morbidity and mortality or to improve the quality of medical care, or for the purpose
155     of peer review of the ethics, competence, or professional conduct of any health care provider.
156          (b) (2) Proportionality. Discovery and discovery requests are proportional if:
157          (b) (2) (A) the discovery is reasonable, considering the needs of the case, the amount in
158     controversy, the complexity of the case, the parties' resources, the importance of the issues, and
159     the importance of the discovery in resolving the issues;
160          (b) (2) (B) the likely benefits of the proposed discovery outweigh the burden or
161     expense;
162          (b) (2) (C) the discovery is consistent with the overall case management and will
163     further the just, speedy and inexpensive determination of the case;
164          (b) (2) (D) the discovery is not unreasonably cumulative or duplicative;
165          (b) (2) (E) the information cannot be obtained from another source that is more
166     convenient, less burdensome or less expensive; and
167          (b) (2) (F) the party seeking discovery has not had sufficient opportunity to obtain the
168     information by discovery or otherwise, taking into account the parties' relative access to the
169     information.
170          (b) (3) Burden. The party seeking discovery always has the burden of showing
171     proportionality and relevance. To ensure proportionality, the court may enter orders under Rule
172     37.
173          (b) (4) Electronically stored information. A party claiming that electronically stored
174     information is not reasonably accessible because of undue burden or cost shall describe the
175     source of the electronically stored information, the nature and extent of the burden, the nature
176     of the information not provided, and any other information that will enable other parties to
177     evaluate the claim.
178          (b) (5) Trial preparation materials. A party may obtain otherwise discoverable
179     documents and tangible things prepared in anticipation of litigation or for trial by or for another
180     party or by or for that other party's representative (including the party's attorney, consultant,
181     surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has
182     substantial need of the materials and that the party is unable without undue hardship to obtain

183     substantially equivalent materials by other means. In ordering discovery of such materials, the
184     court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal
185     theories of an attorney or other representative of a party.
186          (b) (6) Statement previously made about the action. A party may obtain without the
187     showing required in paragraph (b)(5) a statement concerning the action or its subject matter
188     previously made by that party. Upon request, a person not a party may obtain without the
189     required showing a statement about the action or its subject matter previously made by that
190     person. If the request is refused, the person may move for a court order under Rule 37. A
191     statement previously made is (A) a written statement signed or approved by the person making
192     it, or (B) a stenographic, mechanical, electronic, or other recording, or a transcription thereof,
193     which is a substantially verbatim recital of an oral statement by the person making it and
194     contemporaneously recorded.
195          (b) (7) Trial preparation; experts.
196          (b) (7) (A) Trial-preparation protection for draft reports or disclosures. Paragraph
197     (b)(5) protects drafts of any report or disclosure required under paragraph (a)(4), regardless of
198     the form in which the draft is recorded.
199          (b) (7) (B) Trial-preparation protection for communications between a party's
200     attorney and expert witnesses. Paragraph (b)(5) protects communications between the party's
201     attorney and any witness required to provide disclosures under paragraph (a)(4), regardless of
202     the form of the communications, except to the extent that the communications:
203          (b) (7) (B) (i) relate to compensation for the expert's study or testimony;
204          (b) (7) (B) (ii) identify facts or data that the party's attorney provided and that the
205     expert considered in forming the opinions to be expressed; or
206          (b) (7) (B) (iii) identify assumptions that the party's attorney provided and that the
207     expert relied on in forming the opinions to be expressed.
208          (b) (7) (C) Expert employed only for trial preparation. Ordinarily, a party may not,
209     by interrogatories or otherwise, discover facts known or opinions held by an expert who has
210     been retained or specially employed by another party in anticipation of litigation or to prepare
211     for trial and who is not expected to be called as a witness at trial. A party may do so only:
212          (b) (7) (C) (i) as provided in Rule 35(b); or
213          (b) (7) (C) (ii) on showing exceptional circumstances under which it is impracticable

214     for the party to obtain facts or opinions on the same subject by other means.
215          (b) (8) Claims of privilege or protection of trial preparation materials.
216          (b) (8) (A) Information withheld. If a party withholds discoverable information by
217     claiming that it is privileged or prepared in anticipation of litigation or for trial, the party shall
218     make the claim expressly and shall describe the nature of the documents, communications, or
219     things not produced in a manner that, without revealing the information itself, will enable other
220     parties to evaluate the claim.
221          (b) (8) (B) Information produced. If a party produces information that the party
222     claims is privileged or prepared in anticipation of litigation or for trial, the producing party may
223     notify any receiving party of the claim and the basis for it. After being notified, a receiving
224     party must promptly return, sequester, or destroy the specified information and any copies it
225     has and may not use or disclose the information until the claim is resolved. A receiving party
226     may promptly present the information to the court under seal for a determination of the claim.
227     If the receiving party disclosed the information before being notified, it must take reasonable
228     steps to retrieve it. The producing party must preserve the information until the claim is
229     resolved.
230          (c) Methods, sequence and timing of discovery; tiers; limits on standard
231     discovery; extraordinary discovery.
232          (c) (1) Methods of discovery. Parties may obtain discovery by one or more of the
233     following methods: depositions upon oral examination or written questions; written
234     interrogatories; production of documents or things or permission to enter upon land or other
235     property, for inspection and other purposes; physical and mental examinations; requests for
236     admission; and subpoenas other than for a court hearing or trial.
237          (c) (2) Sequence and timing of discovery. Methods of discovery may be used in any
238     sequence, and the fact that a party is conducting discovery shall not delay any other party's
239     discovery. Except for cases exempt under paragraph (a)(3), a party may not seek discovery
240     from any source before that party's initial disclosure obligations are satisfied.
241          (c) (3) Definition of tiers for standard discovery. Actions claiming $50,000 or less in
242     damages are permitted standard discovery as described for Tier 1. Actions claiming more than
243     $50,000 and less than $300,000 in damages are permitted standard discovery as described for
244     Tier 2. Actions claiming $300,000 or more in damages are permitted standard discovery as

245     described for Tier 3. Absent an accompanying damage claim for more than $300,000, actions
246     claiming non-monetary relief are permitted standard discovery as described for Tier 2.
247          (c) (4) Definition of damages. For purposes of determining standard discovery, the
248     amount of damages includes the total of all monetary damages sought (without duplication for
249     alternative theories) by all parties in all claims for relief in the original pleadings.
250          (c) (5) Limits on standard fact discovery. Standard fact discovery per side (plaintiffs
251     collectively, defendants collectively, and third-party defendants collectively) in each tier is as
252     follows. The days to complete standard fact discovery are calculated from the date the first
253     defendant's first disclosure is due and do not include expert discovery under
254     paragraphs(a)(4)(C) and (D).
255     TierAmount of
Damages
Total Fact
Deposition
Hours
Rule 33
Interrogatories
including all
discrete subparts
Rule 34
Requests for
Production
Rule 36
Requests for
Admission
Days to
Complete
Standard
Fact
Discovery
256     1$50,000 or less3055120
257     2More than
$50,000 and less
than $300,000 or
non-monetary
relief
15101010180
258     3$300,000 or
more
30202020210
259          (c)(6) Extraordinary discovery. To obtain discovery beyond the limits established in
260     paragraph (c)(5), a party shall file:
261          (c) (6) (A) before the close of standard discovery and after reaching the limits of
262     standard discovery imposed by these rules, a stipulated statement that extraordinary discovery
263     is necessary and proportional under paragraph (b)(2) and that each party has reviewed and
264     approved a discovery budget; or
265          (c) (6) (B) before the close of standard discovery and after reaching the limits of
266     standard discovery imposed by these rules, a request for extraordinary discovery under Rule
267     37(a).

268          (d) Requirements for disclosure or response; disclosure or response by an
269     organization; failure to disclose; initial and supplemental disclosures and responses.
270          (d) (1) A party shall make disclosures and responses to discovery based on the
271     information then known or reasonably available to the party.
272          (d) (2) If the party providing disclosure or responding to discovery is a corporation,
273     partnership, association, or governmental agency, the party shall act through one or more
274     officers, directors, managing agents, or other persons, who shall make disclosures and
275     responses to discovery based on the information then known or reasonably available to the
276     party.
277          (d) (3) A party is not excused from making disclosures or responses because the party
278     has not completed investigating the case or because the party challenges the sufficiency of
279     another party's disclosures or responses or because another party has not made disclosures or
280     responses.
281          (d) (4) If a party fails to disclose or to supplement timely a disclosure or response to
282     discovery, that party may not use the undisclosed witness, document or material at any hearing
283     or trial unless the failure is harmless or the party shows good cause for the failure.
284          (d) (5) If a party learns that a disclosure or response is incomplete or incorrect in some
285     important way, the party must timely serve on the other parties the additional or correct
286     information if it has not been made known to the other parties. The supplemental disclosure or
287     response must state why the additional or correct information was not previously provided.
288          (e) Signing discovery requests, responses, and objections. Every disclosure, request
289     for discovery, response to a request for discovery and objection to a request for discovery shall
290     be in writing and signed by at least one attorney of record or by the party if the party is not
291     represented. The signature of the attorney or party is a certification under Rule 11. If a request
292     or response is not signed, the receiving party does not need to take any action with respect to it.
293     If a certification is made in violation of the rule, the court, upon motion or upon its own
294     initiative, may take any action authorized by Rule 11 or Rule 37(b).
295          (f) Filing. Except as required by these rules or ordered by the court, a party shall not
296     file with the court a disclosure, a request for discovery or a response to a request for discovery,
297     but shall file only the certificate of service stating that the disclosure, request for discovery or
298     response has been served on the other parties and the date of service.

299          Section 2. Effective date.
300          This resolution takes effect upon approval by a constitutional two-thirds vote of all
301     members elected to each house.