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This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Thu, Mar 1, 2012 at 10:47 AM by khelgesen. --> 1
8 LONG TITLE
9 General Description:
10 This joint resolution amends the Rules of Civil Procedure to include protections against
11 discovery and admission into evidence for privileged matters connected to medical care
12 and peer review.
13 Highlighted Provisions:
14 This resolution:
15 . amends Rule 26 of the Utah Rules of Civil Procedure; and
16 . establishes additional privileges that protect matters connected to medical care and
17 peer review against discovery and admission into evidence.
18 Special Clauses:
19 This resolution provides an immediate effective date.
20 Utah Rules of Civil Procedure Affected:
22 Rule 26, Utah Rules of Civil Procedure
24 Be it resolved by the Legislature of the state of Utah, two-thirds of all members elected to each
25 of the two houses voting in favor thereof:
26 As provided in Utah Constitution Article VIII, Section 4, the Legislature may amend
27 rules of procedure and evidence adopted by the Utah Supreme Court upon a two-thirds vote of
29 Section 1. Rule 26 , Utah Rules of Civil Procedure is amended to read:
30 Rule 26. General provisions governing disclosure and discovery.
31 (a) Disclosure. This rule applies unless changed or supplemented by a rule governing
32 disclosure and discovery in a practice area.
33 (a) (1) Initial disclosures. Except in cases exempt under paragraph (a)(3), a party shall,
34 without waiting for a discovery request, provide to other parties:
35 (a) (1) (A) the name and, if known, the address and telephone number of:
36 (a) (1) (A) (i) each individual likely to have discoverable information supporting its
37 claims or defenses, unless solely for impeachment, identifying the subjects of the information;
39 (a) (1) (A) (ii) each fact witness the party may call in its case-in-chief and, except for
40 an adverse party, a summary of the expected testimony;
41 (a) (1) (B) a copy of all documents, data compilations, electronically stored
42 information, and tangible things in the possession or control of the party that the party may
43 offer in its case-in-chief, except charts, summaries and demonstrative exhibits that have not yet
44 been prepared and must be disclosed in accordance with paragraph (a)(5);
45 (a) (1) (C) a computation of any damages claimed and a copy of all discoverable
46 documents or evidentiary material on which such computation is based, including materials
47 about the nature and extent of injuries suffered;
48 (a) (1) (D) a copy of any agreement under which any person may be liable to satisfy
49 part or all of a judgment or to indemnify or reimburse for payments made to satisfy the
50 judgment; and
51 (a) (1) (E) a copy of all documents to which a party refers in its pleadings.
52 (a) (2) Timing of initial disclosures. The disclosures required by paragraph (a)(1) shall
53 be made:
54 (a) (2) (A) by the plaintiff within 14 days after service of the first answer to the
55 complaint; and
56 (a) (2) (B) by the defendant within 28 days after the plaintiff's first disclosure or after
57 that defendant's appearance, whichever is later.
58 (a) (3) Exemptions.
60 requirements of paragraph (a)(1) do not apply to actions:
61 (a) (3) (A) (i) for judicial review of adjudicative proceedings or rule making
62 proceedings of an administrative agency;
63 (a) (3) (A) (ii) governed by Rule 65B or Rule 65C;
64 (a) (3) (A) (iii) to enforce an arbitration award;
65 (a) (3) (A) (iv) for water rights general adjudication under Title 73, Chapter 4,
66 Determination of Water Rights.
67 (a) (3) (B) In an exempt action, the matters subject to disclosure under paragraph (a)(1)
68 are subject to discovery under paragraph (b).
69 (a) (4) Expert testimony. .
70 (a) (4) (A) Disclosure of expert testimony. A party shall, without waiting for a
71 discovery request, provide to the other parties the following information regarding any person
72 who may be used at trial to present evidence under Rules 702, 703, or of the Utah Rules of
73 Evidence and who is retained or specially employed to provide expert testimony in the case or
74 whose duties as an employee of the party regularly involve giving expert testimony: (i) the
75 expert's name and qualifications, including a list of all publications authored within the
76 preceding 10 years, and a list of any other cases in which the expert has testified as an expert at
77 trial or by deposition within the preceding four years, (ii) a brief summary of the opinions to
78 which the witness is expected to testify, (iii) all data and other information that will be relied
79 upon by the witness in forming those opinions, and (iv) the compensation to be paid for the
80 witness's study and testimony.
81 (a) (4) (B) Limits on expert discovery. Further discovery may be obtained from an
82 expert witness either by deposition or by written report. A deposition shall not exceed four
83 hours and the party taking the deposition shall pay the expert's reasonable hourly fees for
84 attendance at the deposition. A report shall be signed by the expert and shall contain a
85 complete statement of all opinions the expert will offer at trial and the basis and reasons for
86 them. Such an expert may not testify in a party's case-in-chief concerning any matter not fairly
87 disclosed in the report. The party offering the expert shall pay the costs for the report.
88 (a) (4) (C) Timing for expert discovery.
89 (a) (4) (C) (i) The party who bears the burden of proof on the issue for which expert
91 days after the close of fact discovery. Within seven days thereafter, the party opposing the
92 expert may serve notice electing either a deposition of the expert pursuant to paragraph
93 (a)(4)(B) and Rule 30, or a written report pursuant to paragraph (a)(4)(B). The deposition shall
94 occur, or the report shall be provided, within 28 days after the election is made. If no election
95 is made, then no 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 provide the information required by paragraph (a)(4)(A)
98 within seven days after the later of (i) the date on which the election under paragraph
99 (a)(4)(C)(i) is due, or (ii) receipt of the written report or the taking of the expert's deposition
100 pursuant to paragraph (a)(4)(C)(i). Within seven days thereafter, the party opposing the expert
101 may serve notice electing either a deposition of the expert pursuant to paragraph (a)(4)(B) and
102 Rule 30, or a written report pursuant to paragraph (a)(4)(B). The deposition shall occur, or the
103 report shall be provided, within 28 days after the election is made. If no election is made, then
104 no further discovery of the expert shall be permitted.
105 (a) (4) (D) Multiparty actions. In multiparty actions, all parties opposing the expert
106 must agree on either a report or a deposition. If all parties opposing the expert do not agree,
107 then further discovery of the expert may be obtained only by deposition pursuant to paragraph
108 (a)(4)(B) and Rule 30.
109 (a) (4) (E) Summary of non-retained expert testimony. If a party intends to present
110 evidence at trial under Rules 702, 703, or of the Utah Rules of Evidence from any person other
111 than an expert witness who is retained or specially employed to provide testimony in the case
112 or a person whose duties as an employee of the party regularly involve giving expert testimony,
113 that party must provide a written summary of the facts and opinions to which the witness is
114 expected to testify in accordance with the deadlines set forth in paragraph (a)(4)(C). A
115 deposition of such a witness may not exceed four hours.
116 (a) (5) Pretrial disclosures.
117 (a) (5) (A) A party shall, without waiting for a discovery request, provide to other
119 (a) (5) (A) (i) the name and, if not previously provided, the address and telephone
120 number of each witness, unless solely for impeachment, separately identifying witnesses the
122 (a) (5) (A) (ii) the name of witnesses whose testimony is expected to be presented by
123 transcript of a deposition and a copy of the transcript with the proposed testimony designated;
125 (a) (5) (A) (iii) a copy of each exhibit, including charts, summaries and demonstrative
126 exhibits, unless solely for impeachment, separately identifying those which the party will offer
127 and those which the party may offer.
128 (a) (5) (B) Disclosure required by paragraph (a)(5) shall be made at least 28 days
129 before trial. At least 14 days before trial, a party shall serve and file counter designations of
130 deposition testimony, objections and grounds for the objections to the use of a deposition and
131 to the admissibility of exhibits. Other than objections under Rules 402 and 403 of the Utah
132 Rules of Evidence, objections not listed are waived unless excused by the court for good cause.
133 (b) Discovery scope.
134 (b) (1) In general. Parties may discover any matter, not privileged, which is relevant to
135 the claim or defense of any party if the discovery satisfies the standards of proportionality set
136 forth below. Privileged matters that are not discoverable or admissible in any proceeding of
137 any kind or character include all information in any form provided S. [
137a S. [
138 investigation, findings, or conclusions of S. peer review, care review, or quality assurance
138a processes of .S any organization of health care providers as defined
139 in the Utah Health Care Malpractice Act for the purpose of evaluating care provided to reduce
140 morbidity and mortality or to improve the quality of medical care, or for the purpose of peer
141 review of the ethics, competence, or professional conduct of any health care provider.
142 (b) (2) Proportionality. Discovery and discovery requests are proportional if:
143 (b) (2) (A) the discovery is reasonable, considering the needs of the case, the amount in
144 controversy, the complexity of the case, the parties' resources, the importance of the issues, and
145 the importance of the discovery in resolving the issues;
146 (b) (2) (B) the likely benefits of the proposed discovery outweigh the burden or
148 (b) (2) (C) the discovery is consistent with the overall case management and will
149 further the just, speedy and inexpensive determination of the case;
150 (b) (2) (D) the discovery is not unreasonably cumulative or duplicative;
151 (b) (2) (E) the information cannot be obtained from another source that is more
153 (b) (2) (F) the party seeking discovery has not had sufficient opportunity to obtain the
154 information by discovery or otherwise, taking into account the parties' relative access to the
156 (b) (3) Burden. The party seeking discovery always has the burden of showing
157 proportionality and relevance. To ensure proportionality, the court may enter orders under
158 Rule 37.
159 (b) (4) Electronically stored information. A party claiming that electronically stored
160 information is not reasonably accessible because of undue burden or cost shall describe the
161 source of the electronically stored information, the nature and extent of the burden, the nature
162 of the information not provided, and any other information that will enable other parties to
163 evaluate the claim.
164 (b) (5) Trial preparation materials. A party may obtain otherwise discoverable
165 documents and tangible things prepared in anticipation of litigation or for trial by or for another
166 party or by or for that other party's representative (including the party's attorney, consultant,
167 surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has
168 substantial need of the materials and that the party is unable without undue hardship to obtain
169 substantially equivalent materials by other means. In ordering discovery of such materials, the
170 court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal
171 theories of an attorney or other representative of a party.
172 (b) (6) Statement previously made about the action. A party may obtain without the
173 showing required in paragraph (b)(5) a statement concerning the action or its subject matter
174 previously made by that party. Upon request, a person not a party may obtain without the
175 required showing a statement about the action or its subject matter previously made by that
176 person. If the request is refused, the person may move for a court order under Rule 37. A
177 statement previously made is (A) a written statement signed or approved by the person making
178 it, or (B) a stenographic, mechanical, electronic, or other recording, or a transcription thereof,
179 which is a substantially verbatim recital of an oral statement by the person making it and
180 contemporaneously recorded.
181 (b) (7) Trial preparation; experts.
182 (b) (7) (A) Trial-preparation protection for draft reports or disclosures. Paragraph
184 the form in which the draft is recorded.
185 (b) (7) (B) Trial-preparation protection for communications between a party's attorney
186 and expert witnesses. Paragraph (b)(5) protects communications between the party's attorney
187 and any witness required to provide disclosures under paragraph (a)(4), regardless of the form
188 of the communications, except to the extent that the communications:
189 (b) (7) (B) (i) relate to compensation for the expert's study or testimony;
190 (b) (7) (B) (ii) identify facts or data that the party's attorney provided and that the
191 expert considered in forming the opinions to be expressed; or
192 (b) (7) (B) (iii) identify assumptions that the party's attorney provided and that the
193 expert relied on in forming the opinions to be expressed.
194 (b) (7) (C) Expert employed only for trial preparation. Ordinarily, a party may not, by
195 interrogatories or otherwise, discover facts known or opinions held by an expert who has been
196 retained or specially employed by another party in anticipation of litigation or to prepare for
197 trial and who is not expected to be called as a witness at trial. A party may do so only:
198 (b) (7) (C) (i) as provided in Rule 35(b); or
199 (b) (7) (C) (ii) on showing exceptional circumstances under which it is impracticable
200 for the party to obtain facts or opinions on the same subject by other means.
201 (b) (8) Claims of privilege or protection of trial preparation materials.
202 (b) (8) (A) Information withheld. If a party withholds discoverable information by
203 claiming that it is privileged or prepared in anticipation of litigation or for trial, the party shall
204 make the claim expressly and shall describe the nature of the documents, communications, or
205 things not produced in a manner that, without revealing the information itself, will enable other
206 parties to evaluate the claim.
207 (b) (8) (B) Information produced. If a party produces information that the party claims
208 is privileged or prepared in anticipation of litigation or for trial, the producing party may notify
209 any receiving party of the claim and the basis for it. After being notified, a receiving party
210 must promptly return, sequester, or destroy the specified information and any copies it has and
211 may not use or disclose the information until the claim is resolved. A receiving party may
212 promptly present the information to the court under seal for a determination of the claim. If the
213 receiving party disclosed the information before being notified, it must take reasonable steps to
215 (c) Methods, sequence and timing of discovery; tiers; limits on standard discovery;
216 extraordinary discovery.
217 (c) (1) Methods of discovery. Parties may obtain discovery by one or more of the
218 following methods: depositions upon oral examination or written questions; written
219 interrogatories; production of documents or things or permission to enter upon land or other
220 property, for inspection and other purposes; physical and mental examinations; requests for
221 admission; and subpoenas other than for a court hearing or trial.
222 (c) (2) Sequence and timing of discovery. Methods of discovery may be used in any
223 sequence, and the fact that a party is conducting discovery shall not delay any other party's
224 discovery. Except for cases exempt under paragraph (a)(3), a party may not seek discovery
225 from any source before that party's initial disclosure obligations are satisfied.
226 (c) (3) Definition of tiers for standard discovery. Actions claiming $50,000 or less in
227 damages are permitted standard discovery as described for Tier 1. Actions claiming more than
228 $50,000 and less than $300,000 in damages are permitted standard discovery as described for
229 Tier 2. Actions claiming $300,000 or more in damages are permitted standard discovery as
230 described for Tier 3. Absent an accompanying damage claim for more than $300,000, actions
231 claiming non-monetary relief are permitted standard discovery as described for Tier 2.
232 (c) (4) Definition of damages. For purposes of determining standard discovery, the
233 amount of damages includes the total of all monetary damages sought (without duplication for
234 alternative theories) by all parties in all claims for relief in the original pleadings.
235 (c) (5) Limits on standard fact discovery. Standard fact discovery per side (plaintiffs
236 collectively, defendants collectively, and third-party defendants collectively) in each tier is as
237 follows. The days to complete standard fact discovery are calculated from the date the first
238 defendant's first disclosure is due and do not include expert discovery under paragraphs
239 (a)(4)(C) and (D).
245 paragraph (c)(5), a party shall file:
246 (c) (6) (A) before the close of standard discovery and after reaching the limits of
247 standard discovery imposed by these rules, a stipulated statement that extraordinary discovery
248 is necessary and proportional under paragraph (b)(2) and that each party has reviewed and
249 approved a discovery budget; or
250 (c) (6) (B) before the close of standard discovery and after reaching the limits of
251 standard discovery imposed by these rules, a motion for extraordinary discovery setting forth
252 the reasons why the extraordinary discovery is necessary and proportional under paragraph
253 (b)(2) and certifying that the party has reviewed and approved a discovery budget and
254 certifying that the party has in good faith conferred or attempted to confer with the other party
255 in an effort to achieve a stipulation.
256 (d) Requirements for disclosure or response; disclosure or response by an organization;
258 (d) (1) A party shall make disclosures and responses to discovery based on the
259 information then known or reasonably available to the party.
260 (d) (2) If the party providing disclosure or responding to discovery is a corporation,
261 partnership, association, or governmental agency, the party shall act through one or more
262 officers, directors, managing agents, or other persons, who shall make disclosures and
263 responses to discovery based on the information then known or reasonably available to the
265 (d) (3) A party is not excused from making disclosures or responses because the party
266 has not completed investigating the case or because the party challenges the sufficiency of
267 another party's disclosures or responses or because another party has not made disclosures or
269 (d) (4) If a party fails to disclose or to supplement timely a disclosure or response to
270 discovery, that party may not use the undisclosed witness, document or material at any hearing
271 or trial unless the failure is harmless or the party shows good cause for the failure.
272 (d) (5) If a party learns that a disclosure or response is incomplete or incorrect in some
273 important way, the party must timely provide the additional or correct information if it has not
274 been made known to the other parties. The supplemental disclosure or response must state why
275 the additional or correct information was not previously provided.
276 (e) Signing discovery requests, responses, and objections. Every disclosure, request for
277 discovery, response to a request for discovery and objection to a request for discovery shall be
278 in writing and signed by at least one attorney of record or by the party if the party is not
279 represented. The signature of the attorney or party is a certification under Rule 11. If a request
280 or response is not signed, the receiving party does not need to take any action with respect to it.
281 If a certification is made in violation of the rule, the court, upon motion or upon its own
282 initiative, may take any action authorized by Rule 11 or Rule 37(e).
283 (f) Filing. Except as required by these rules or ordered by the court, a party shall not
284 file with the court a disclosure, a request for discovery or a response to a request for discovery,
285 but shall file only the certificate of service stating that the disclosure, request for discovery or
286 response has been served on the other parties and the date of service.
287 Section 2. Legislative note.
289 the following language be added as a Legislative Note.
290 " Legislative Note.
291 (1) The amended language in paragraph (b)(1) is intended to incorporate long-standing
292 protections against discovery and admission into evidence of privileged matters connected to
293 medical care review and peer review into the Utah Rules of Civil Procedure. These privileges,
294 found in both Utah common law and statute, include Sections 26-25-3 , 58-13-4 , and 58-13-5 ,
295 UCA, 1953. S. The language is intended to ensure the confidentiality of peer review, care
295a review, and quality assurance processes and to ensure that the privilege is limited only to
295b documents and information created specifically as part of the processes. It does not extend to
295c knowledge gained or documents created outside or independent of the processes. The language
295d is not intended to limit the court's existing ability, if it chooses, to review contested documents
295e in camera in order to determine whether the documents fall within the privilege. The language
295f is not intended to alter any existing law, rule, or regulation relating to the confidentiality,
295g admissibility, or disclosure of proceedings before the Utah Division of Occupational and
295h Professional Licensing. .S The Legislature intends that these privileges apply to all pending and
296 proceedings governed by court rules, including administrative proceedings regarding licensing
297 and reimbursement.
298 (2) The Legislature does not intend that the amendments to this rule be construed to
299 change or alter a final order concerning discovery matters entered on or before the effective
300 date of this amendment.
301 (3) The Legislature intends to give the greatest effect to its amendment, as legally
302 permissible, in matters that are pending on or may arise after the effective date of this
303 amendment, without regard to when the case was filed."
304 Section 3. Effective date.
305 This resolution takes effect upon approval by a constitutional two-thirds vote of all
306 members elected to each house.
Legislative Review Note
as of 2-21-12 8:20 AM