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9 LONG TITLE
10 General Description:
11 This joint resolution amends court rules of procedure and evidence to address the
12 medical candor process.
13 Highlighted Provisions:
14 This resolution:
15 ▸ amends Rule 26 of the Utah Rules of Civil Procedure to address communications,
16 materials, and information provided during or created for the medical candor
17 process;
18 ▸ amends Rule 409 of the Utah Rules of Evidence to address evidence created during
19 or as a part of a medical candor process; and
20 ▸ makes technical and conforming changes.
21 Special Clauses:
22 This resolution provides a special effective date.
23 Utah Rules of Civil Procedure Affected:
24 AMENDS:
25 Rule 26, Utah Rules of Civil Procedure
26 Utah Rules of Evidence Affected:
27 AMENDS:
28 Rule 409, Utah Rules of Evidence
29
30 Be it resolved by the Legislature of the state of Utah, two-thirds of all members elected to each
31 of the two houses voting in favor thereof:
32 As provided in Utah Constitution Article VIII, Section 4, the Legislature may amend
33 rules of procedure and evidence adopted by the Utah Supreme Court upon a two-thirds vote of
34 all members of both houses of the Legislature:
35 Section 1. Rule 26, Utah Rules of Civil Procedure is amended to read:
36 Rule 26. General provisions governing disclosure of discovery.
37 (a) Disclosure. This rule applies unless changed or supplemented by a rule governing
38 disclosure and discovery in a practice area.
39 (1) Initial disclosures. Except in cases exempt under paragraph (a)(3), a party must,
40 without waiting for a discovery request, serve on the other parties:
41 (A) the name and, if known, the address and telephone number of:
42 (i) each individual likely to have discoverable information supporting its claims or
43 defenses, unless solely for impeachment, identifying the subjects of the information; and
44 (ii) each fact witness the party may call in its case-in-chief and, except for an adverse
45 party, a summary of the expected testimony;
46 (B) a copy of all documents, data compilations, electronically stored information, and
47 tangible things in the possession or control of the party that the party may offer in its
48 case-in-chief, except charts, summaries, and demonstrative exhibits that have not yet been
49 prepared and must be disclosed in accordance with paragraph (a)(5);
50 (C) a computation of any damages claimed and a copy of all discoverable documents or
51 evidentiary material on which such computation is based, including materials about the nature
52 and extent of injuries suffered;
53 (D) a copy of any agreement under which any person may be liable to satisfy part or all
54 of a judgment or to indemnify or reimburse for payments made to satisfy the judgment; and
55 (E) a copy of all documents to which a party refers in its pleadings.
56 (2) Timing of initial disclosures. The disclosures required by paragraph (a)(1) must
57 be served on the other parties:
58 (A) by a plaintiff within 14 days after the filing of the first answer to that plaintiff's
59 complaint; and
60 (B) by a defendant within 42 days after the filing of that defendant's first answer to the
61 complaint.
62 (3) Exemptions.
63 (A) Unless otherwise ordered by the court or agreed to by the parties, the requirements
64 of paragraph (a)(1) do not apply to actions:
65 (i) for judicial review of adjudicative proceedings or rule making proceedings of an
66 administrative agency;
67 (ii) governed by Rule 65B or Rule 65C;
68 (iii) to enforce an arbitration award;
69 (iv) for water rights general adjudication under Title 73, Chapter 4, Determination of
70 Water Rights.
71 (B) In an exempt action, the matters subject to disclosure under paragraph (a)(1) are
72 subject to discovery under paragraph (b).
73 (4) Expert testimony.
74 (A) Disclosure of retained expert testimony. A party must, without waiting for a
75 discovery request, serve on the other parties the following information regarding any person
76 who may be used at trial to present evidence under Rule 702 of the Utah Rules of Evidence and
77 who is retained or specially employed to provide expert testimony in the case or whose duties
78 as an employee of the party regularly involve giving expert testimony: (i) the expert's name and
79 qualifications, including a list of all publications authored within the preceding 10 years, and a
80 list of any other cases in which the expert has testified as an expert at trial or by deposition
81 within the preceding four years, (ii) a brief summary of the opinions to which the witness is
82 expected to testify, (iii) the facts, data, and other information specific to the case that will be
83 relied upon by the witness in forming those opinions, and (iv) the compensation to be paid for
84 the witness's study and testimony.
85 (B) Limits on expert discovery. Further discovery may be obtained from an expert
86 witness either by deposition or by written report. A deposition must not exceed four hours and
87 the party taking the deposition must pay the expert's reasonable hourly fees for attendance at
88 the deposition. A report must be signed by the expert and must contain a complete statement of
89 all opinions the expert will offer at trial and the basis and reasons for them. Such an expert may
90 not testify in a party's case-in-chief concerning any matter not fairly disclosed in the report.
91 The party offering the expert must pay the costs for the report.
92 (C) Timing for expert discovery.
93 (i) The party who bears the burden of proof on the issue for which expert testimony is
94 offered must serve on the other parties the information required by paragraph (a)(4)(A) within
95 14 days after the close of fact discovery. Within 14 days thereafter, the party opposing the
96 expert may serve notice electing either a deposition of the expert pursuant to paragraph
97 (a)(4)(B) and Rule 30, or a written report pursuant to paragraph (a)(4)(B). The deposition must
98 occur, or the report must be served on the other parties, within 42 days after the election is
99 served on the other parties. If no election is served on the other parties, then no further
100 discovery of the expert must be permitted.
101 (ii) The party who does not bear the burden of proof on the issue for which expert
102 testimony is offered must serve on the other parties the information required by paragraph
103 (a)(4)(A) within 14 days after the later of (A) the date on which the disclosure under paragraph
104 (a)(4)(C)(i) is due, or (B) service of the written report or the taking of the expert's deposition
105 pursuant to paragraph (a)(4)(C)(i). Within 14 days thereafter, the party opposing the expert may
106 serve notice electing either a deposition of the expert pursuant to paragraph (a)(4)(B) and Rule
107 30, or a written report pursuant to paragraph (a)(4)(B). The deposition must occur, or the report
108 must be served on the other parties, within 42 days after the election is served on the other
109 parties. If no election is served on the other parties, then no further discovery of the expert must
110 be permitted.
111 (iii) If the party who bears the burden of proof on an issue wants to designate rebuttal
112 expert witnesses, it must serve on the other parties the information required by paragraph
113 (a)(4)(A) within 14 days after the later of (A) the date on which the election under paragraph
114 (a)(4)(C)(ii) is due or (B) service of the written report or the taking of the expert's deposition
115 pursuant to paragraph (a)(4)(C)(ii). Within 14 days thereafter, the party opposing the expert
116 may serve notice electing either a deposition of the expert pursuant to paragraph (a)(4)(B) and
117 Rule 30, or a written report pursuant to paragraph (a)(4)(B). The deposition must occur, or the
118 report must be served on the other parties, within 42 days after the election is served on the
119 other parties. If no election is served on the other parties, then no further discovery of the
120 expert must be permitted. The court may preclude an expert disclosed only as a rebuttal expert
121 from testifying in the case in chief.
122 (D) Multiparty actions. In multiparty actions, all parties opposing the expert must
123 agree on either a report or a deposition. If all parties opposing the expert do not agree, then
124 further discovery of the expert may be obtained only by deposition pursuant to paragraph
125 (a)(4)(B) and Rule 30.
126 (E) Summary of non-retained expert testimony. If a party intends to present
127 evidence at trial under Rule 702 of the Utah Rules of Evidence from any person other than an
128 expert witness who is retained or specially employed to provide testimony in the case or a
129 person whose duties as an employee of the party regularly involve giving expert testimony, that
130 party must serve on the other parties a written summary of the facts and opinions to which the
131 witness is expected to testify in accordance with the deadlines set forth in paragraph (a)(4)(C).
132 Such a witness cannot be required to provide a report pursuant to paragraph (a)(4)(B). A
133 deposition of such a witness may not exceed four hours and, unless manifest injustice would
134 result, the party taking the deposition must pay the expert's reasonable hourly fees for
135 attendance at the deposition.
136 (5) Pretrial disclosures.
137 (A) A party must, without waiting for a discovery request, serve on the other parties:
138 (i) the name and, if not previously provided, the address and telephone number of each
139 witness, unless solely for impeachment, separately identifying witnesses the party will call and
140 witnesses the party may call;
141 (ii) the name of witnesses whose testimony is expected to be presented by transcript of
142 a deposition;
143 (iii) designations of the proposed deposition testimony; and
144 (iv) a copy of each exhibit, including charts, summaries, and demonstrative exhibits,
145 unless solely for impeachment, separately identifying those which the party will offer and those
146 which the party may offer.
147 (B) Disclosure required by paragraph (a)(5)(A) must be served on the other parties at
148 least 28 days before trial. Disclosures required by paragraph (a)(5)(A)(i) and (a)(5)(A)(ii) must
149 also be filed on the date that they are served. At least 14 days before trial, a party must serve
150 any counter designations of deposition testimony and any objections and grounds for the
151 objections to the use of any deposition, witness, or exhibit if the grounds for the objection are
152 apparent before trial. Other than objections under Rules 402 and 403 of the Utah Rules of
153 Evidence, other objections not listed are waived unless excused by the court for good cause.
154 (6) Form of disclosure and discovery production. Rule 34 governs the form in
155 which all documents, data compilations, electronically stored information, tangible things, and
156 evidentiary material should be produced under this Rule.
157 (b) Discovery scope.
158 (1) In general. Parties may discover any matter, not privileged, which is relevant to
159 the claim or defense of any party if the discovery satisfies the standards of proportionality set
160 forth below.
161 (2) Privileged matters.
162 (A) Privileged matters that are not discoverable or admissible in any proceeding of any
163 kind or character include:
164 (i) all information in any form provided during and created specifically as part of a
165 request for an investigation, the investigation, findings, or conclusions of peer review, care
166 review, or quality assurance processes of any organization of health care providers as defined
167 in [
168 evaluating care provided to reduce morbidity and mortality or to improve the quality of medical
169 care, or for the purpose of peer review of the ethics, competence, or professional conduct of
170 any health care provider[
171 (ii) all communications, materials, and information in any form provided during or
172 created for a medical candor process under Title 78B, Chapter 3, Part 4a, Utah Medical Candor
173 Act, including any findings or conclusions from the investigation, any findings or conclusions
174 of peer review, care review, or quality assurance processes, and any offer of compensation.
175 (B) Any communication, disclosure, or sharing of information with a patient or a
176 representative of the patient, as those terms are defined in Section 78B-3-450, as a part of the
177 medical candor process under Title 78B, Chapter 3, Part 4a, Utah Medical Candor Act, does
178 not waive any privilege or protection against admissibility or discovery as to any
179 communication, material, or information not expressly or specifically communicated,
180 disclosed, or shared with the patient or a representative of the patient.
181 (C) A party seeking discovery of any communication, information, or material that may
182 be a privileged matter under paragraph (b)(2)(A) or (B) has the burden of showing that, by a
183 preponderance of the evidence, the communication, information, or material is not a privileged
184 matter.
185 (D) Nothing in this paragraph (b)(2) shall prevent a party from raising any other
186 privileges provided by law as to the admissibility or discovery of a communication,
187 information, or material described in paragraph (b)(2)(A) or (B).
188 [
189 (A) the discovery is reasonable, considering the needs of the case, the amount in
190 controversy, the complexity of the case, the parties' resources, the importance of the issues, and
191 the importance of the discovery in resolving the issues;
192 (B) the likely benefits of the proposed discovery outweigh the burden or expense;
193 (C) the discovery is consistent with the overall case management and will further the
194 just, speedy, and inexpensive determination of the case;
195 (D) the discovery is not unreasonably cumulative or duplicative;
196 (E) the information cannot be obtained from another source that is more convenient,
197 less burdensome, or less expensive; and
198 (F) the party seeking discovery has not had sufficient opportunity to obtain the
199 information by discovery or otherwise, taking into account the parties' relative access to the
200 information.
201 [
202 proportionality and relevance. To ensure proportionality, the court may enter orders under Rule
203 37.
204 [
205 stored information is not reasonably accessible because of undue burden or cost must describe
206 the source of the electronically stored information, the nature and extent of the burden, the
207 nature of the information not provided, and any other information that will enable other parties
208 to evaluate the claim.
209 [
210 documents and tangible things prepared in anticipation of litigation or for trial by or for another
211 party or by or for that other party's representative (including the party's attorney, consultant,
212 surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has
213 substantial need of the materials and that the party is unable without undue hardship to obtain
214 substantially equivalent materials by other means. In ordering discovery of such materials, the
215 court must protect against disclosure of the mental impressions, conclusions, opinions, or legal
216 theories of an attorney or other representative of a party.
217 [
218 the showing required in paragraph [
219 subject matter previously made by that party. Upon request, a person not a party may obtain
220 without the required showing a statement about the action or its subject matter previously made
221 by that person. If the request is refused, the person may move for a court order under Rule 37.
222 A statement previously made is (A) a written statement signed or approved by the person
223 making it, or (B) a stenographic, mechanical, electronic, or other recording, or a transcription
224 thereof, which is a substantially verbatim recital of an oral statement by the person making it
225 and contemporaneously recorded.
226 [
227 (A) Trial-preparation protection for draft reports or disclosures. Paragraph
228 [
229 regardless of the form in which the draft is recorded.
230 (B) Trial-preparation protection for communications between a party's attorney
231 and expert witnesses. Paragraph [
232 attorney and any witness required to provide disclosures under paragraph (a)(4), regardless of
233 the form of the communications, except to the extent that the communications:
234 (i) relate to compensation for the expert's study or testimony;
235 (ii) identify facts or data that the party's attorney provided and that the expert
236 considered in forming the opinions to be expressed; or
237 (iii) identify assumptions that the party's attorney provided and that the expert relied on
238 in forming the opinions to be expressed.
239 (C) Expert employed only for trial preparation. Ordinarily, a party may not, by
240 interrogatories or otherwise, discover facts known or opinions held by an expert who has been
241 retained or specially employed by another party in anticipation of litigation or to prepare for
242 trial and who is not expected to be called as a witness at trial. A party may do so only:
243 (i) as provided in Rule 35(b); or
244 (ii) on showing exceptional circumstances under which it is impracticable for the party
245 to obtain facts or opinions on the same subject by other means.
246 (8) Claims of privilege or protection of trial preparation materials.
247 (A) Information withheld. If a party withholds discoverable information by claiming
248 that it is privileged or prepared in anticipation of litigation or for trial, the party must make the
249 claim expressly and must describe the nature of the documents, communications, or things not
250 produced in a manner that, without revealing the information itself, will enable other parties to
251 evaluate the claim.
252 (B) Information produced. If a party produces information that the party claims is
253 privileged or prepared in anticipation of litigation or for trial, the producing party may notify
254 any receiving party of the claim and the basis for it. After being notified, a receiving party must
255 promptly return, sequester, or destroy the specified information and any copies it has and may
256 not use or disclose the information until the claim is resolved. A receiving party may promptly
257 present the information to the court under seal for a determination of the claim. If the receiving
258 party disclosed the information before being notified, it must take reasonable steps to retrieve
259 it. The producing party must preserve the information until the claim is resolved.
260 (c) Methods, sequence, and timing of discovery; tiers; limits on standard
261 discovery; extraordinary discovery.
262 (1) Methods of discovery. Parties may obtain discovery by one or more of the
263 following methods: depositions upon oral examination or written questions; written
264 interrogatories; production of documents or things or permission to enter upon land or other
265 property, for inspection and other purposes; physical and mental examinations; requests for
266 admission; and subpoenas other than for a court hearing or trial.
267 (2) Sequence and timing of discovery. Methods of discovery may be used in any
268 sequence, and the fact that a party is conducting discovery must not delay any other party's
269 discovery. Except for cases exempt under paragraph (a)(3), a party may not seek discovery
270 from any source before that party's initial disclosure obligations are satisfied.
271 (3) Definition of tiers for standard discovery. Actions claiming $50,000 or less in
272 damages are permitted standard discovery as described for Tier 1. Actions claiming more than
273 $50,000 and less than $300,000 in damages are permitted standard discovery as described for
274 Tier 2. Actions claiming $300,000 or more in damages are permitted standard discovery as
275 described for Tier 3. Absent an accompanying damage claim for more than $300,000, actions
276 claiming non-monetary relief are permitted standard discovery as described for Tier 2.
277 Domestic relations actions are permitted standard discovery as described for Tier 4.
278 (4) Definition of damages. For purposes of determining standard discovery, the
279 amount of damages includes the total of all monetary damages sought (without duplication for
280 alternative theories) by all parties in all claims for relief in the original pleadings.
281 (5) Limits on standard fact discovery. Standard fact discovery per side (plaintiffs
282 collectively, defendants collectively, and third-party defendants collectively) in each tier is as
283 follows. The days to complete standard fact discovery are calculated from the date the first
284 defendant's first disclosure is due and do not include expert discovery under paragraphs
285 (a)(4)(C) and (D).
| 286 | Tier | Amount 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 |
| 287 | 1 | $50,000 or less | 3 | 0 | 5 | 5 | 120 |
| 288 | 2 | More than $50,000 and less than $300,000 or non-monetary relief | 15 | 10 | 10 | 10 | 180 |
| 289 | 3 | $300,000 or more | 30 | 20 | 20 | 20 | 210 |
| 290 | 4 | Domestic relations actions | 4 | 10 | 10 | 10 | 90 |
292 paragraph (c)(5), a party must:
293 (A) before the close of standard discovery and after reaching the limits of standard
294 discovery imposed by these rules, file a stipulated statement that extraordinary discovery is
295 necessary and proportional under paragraph (b)(2) and, for each party represented by an
296 attorney, a statement that the attorney consulted with the client about the request for
297 extraordinary discovery;
298 (B) before the close of standard discovery and after reaching the limits of standard
299 discovery imposed by these rules, file a request for extraordinary discovery under Rule 37(a);
300 or
301 (C) obtain an expanded discovery schedule under Rule 100A.
302 (d) Requirements for disclosure or response; disclosure or response by an
303 organization; failure to disclose; initial and supplemental disclosures and responses.
304 (1) A party must make disclosures and responses to discovery based on the information
305 then known or reasonably available to the party.
306 (2) If the party providing disclosure or responding to discovery is a corporation,
307 partnership, association, or governmental agency, the party must act through one or more
308 officers, directors, managing agents, or other persons, who must make disclosures and
309 responses to discovery based on the information then known or reasonably available to the
310 party.
311 (3) A party is not excused from making disclosures or responses because the party has
312 not completed investigating the case, the party challenges the sufficiency of another party's
313 disclosures or responses, or another party has not made disclosures or responses.
314 (4) If a party fails to disclose or to supplement timely a disclosure or response to
315 discovery, that party may not use the undisclosed witness, document, or material at any hearing
316 or trial unless the failure is harmless or the party shows good cause for the failure.
317 (5) If a party learns that a disclosure or response is incomplete or incorrect in some
318 important way, the party must timely serve on the other parties the additional or correct
319 information if it has not been made known to the other parties. The supplemental disclosure or
320 response must state why the additional or correct information was not previously provided.
321 (e) Signing discovery requests, responses, and objections. Every disclosure, request
322 for discovery, response to a request for discovery, and objection to a request for discovery must
323 be in writing and signed by at least one attorney of record or by the party if the party is not
324 represented. The signature of the attorney or party is a certification under Rule 11. If a request
325 or response is not signed, the receiving party does not need to take any action with respect to it.
326 If a certification is made in violation of the rule, the court, upon motion or upon its own
327 initiative, may take any action authorized by Rule 11 or Rule 37(b).
328 (f) Filing. Except as required by these rules or ordered by the court, a party must not
329 file with the court a disclosure, a request for discovery, or a response to a request for discovery,
330 but must file only the certificate of service stating that the disclosure, request for discovery, or
331 response has been served on the other parties and the date of service.
332 Section 2. Rule 409, Utah Rules of Evidence is amended to read:
333 Rule 409. Payment of Medical and Similar Expenses; Expressions of Apology;
334 Medical Candor Process.
335 (a) Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or
336 similar expenses resulting from an injury is not admissible to prove liability for the injury.
337 (b) Evidence of unsworn statements, affirmations, gestures, or conduct made to a
338 patient or a person associated with the patient by a defendant that expresses the following is not
339 admissible in a malpractice action against a health care provider or an employee of a health
340 care provider to prove liability for an injury[
341 (b) (1) apology, sympathy, commiseration, condolence, compassion, or general sense
342 of benevolence; or
343 (b) (2) a description of the sequence of events relating to the unanticipated outcome of
344 medical care or the significance of events.
345 (c) Evidence of any communication, information, material, or conduct made during or
346 created for the medical candor process under Title 78B, Chapter 3, Part 4a, Utah Medical
347 Candor Act, is not admissible in a malpractice action against a health care provider or an
348 employee of a health care provider to prove liability for an injury, including:
349 (c) (1) any findings or conclusions of an investigation under Section 78B-3-451 that are
350 shared with a patient or a representative of a patient, as those terms are defined in Section
351 78B-3-450; or
352 (c) (2) any offer of compensation made to the patient or a representative of a patient
353 during or as part of the medical candor process.
354 Section 3. Effective date.
355 This resolution takes effect upon approval by a constitutional two-thirds vote of all
356 members elected to each house.