RULE CR 26
GENERAL PROVISIONS GOVERNING DISCOVERY
(a) Discovery Methods. Parties may obtain discovery by one or more of the
following methods: depositions upon oral examination or written questions;
written interrogatories; production of documents or things or permission
to enter upon land or other property, for inspection and other purposes;
physical and mental examinations; and requests for admission.
(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 books, documents, or other 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
section (a) 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,
limitations on 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 section (c).
(2) Insurance Agreements. A party may obtain discovery and production of:
(i) 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; and
(ii) any documents affecting coverage (such as denying coverage,
extending coverage, or reserving rights) from or on behalf of such
person to the covered person or the covered person's representative.
Information concerning the insurance agreement is not by reason of
disclosure admissible in evidence at trial. For purposes of this
section, an application for insurance shall not be treated as part of
an insurance agreement.
(3) Structured Settlements and Awards. In a case where a settlement or
final award provides for all or part of the recovery to be paid in
the future, a party entitled to such payments may obtain disclosure
of the actual cost to the defendant of making such payments. This
disclosure may be obtained during settlement negotiations upon
written demand by a party entitled to such payments. If disclosure of
cost is demanded, the defendant may withdraw the offer of a
structured settlement at any time before the offer is accepted.
(4) Trial Preparation: Materials. Subject to the provisions of subsection
(b)(5) of this rule, a party may obtain discovery of documents and
tangible things otherwise discoverable under subsection (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 his 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 his case and
that he 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 section, 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 substantially verbatim recital
of an oral statement by the person making it and
contemporaneously recorded.
(5) Trial Preparation: Experts. Discovery of facts known and opinions
held by experts, otherwise discoverable under the provisions of
subsection (b)(1) of this rule and acquired or developed in
anticipation of litigation or for trial, may be obtained only as follows:
(A) (i) 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 a summary of the grounds for each opinion, and to state such
other information about the expert as may be discoverable under
these rules. (ii) A party may, subject to the provisions of this
rule and of rules 30 and 31, depose each person whom any other
party expects to call as an expert witness at trial.
(B) A party may discover facts known or opinions held by an expert
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
subsections (b)(5)(A)(ii) and (b)(5)(B) of this rule; and (ii)
with respect to discovery obtained under subsection
(b)(5)(A)(ii) of this rule the court may require, and with
respect to discovery obtained under subsection (b)(5)(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.
(6) Claims of Privilege or Protection as Trial-Preparation Materials
for Information Produced. If 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 it. After
being notified, a party must promptly return, sequester, or destroy
the specified information and any copies it has; must not use or
disclose the information until the claim is resolved; and must take
reasonable steps to retrieve the information if the party disclosed
it before being notified. Either party may promptly present the
information in camera to the court for a determination of the claim.
The producing party must preserve the information until the claim is resolved.
(7) Discovery From Treating Health Care Providers. The party seeking
discovery from a treating health care provider shall pay a reasonable
fee for the reasonable time spent in responding to the discovery. If
no agreement for the amount of the fee is reached in advance, absent
an order to the contrary under section (c), the discovery shall occur
and the health care provider or any party may later seek an order
setting the amount of the fee to be paid by the party who sought the
discovery. This subsection shall not apply to the provision of
records under RCW 70.02 or any similar statute, nor to discovery
authorized under any rules for criminal matters.
(8) Treaties or Conventions. If the methods of discovery provided by
applicable treaty or convention are inadequate or inequitable and
additional discovery is not prohibited by the treaty or convention, a
party may employ the discovery methods described in these rules to
supplement the discovery method provided by such treaty or convention.
(c) Protective Orders. Upon motion by a party or by the person from whom
discovery is sought, and for good cause shown, the court in which the
action is pending or 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 discovery not be had;
(2) that the 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
discovery be limited to certain matters;
(5) that discovery be conducted with no one present except persons
designated by the court;
(6) that the contents of a deposition not be disclosed or be disclosed
only in a designated way;
(7) that a trade secret or other confidential research, development, or
commercial information not be disclosed or be disclosed only in a
designated way;
(8) that the parties simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by
the court.
If the motion for a protective order is denied in whole or in part, the court
may, on such terms and conditions as are just, order that any party or person
provide or permit discovery. 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 no duty to
supplement his response to include information thereafter acquired, except
as follows:
(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 he is expected to
testify, and the substance of his testimony.
(2) A party is under a duty seasonably to amend a prior response if he
obtains information upon the basis of which:
(A) he knows that the response was incorrect when made; or
(B) he knows that the response though correct when made is no longer
true 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) Failure to seasonably supplement in accordance with this rule will
subject the party to such terms and conditions as the trial court may
deem appropriate.
(f) Discovery Conference. At any time after commencement of an action the
court may direct the attorneys for the parties to appear before it for a
conference on the subject of discovery. The court shall do so upon motion
by the attorney for any party if the motion includes:
(1) A statement of the issues as they then appear;
(2) A proposed plan and schedule of discovery;
(3) Any limitations proposed to be placed on discovery;
(4) Any other proposed orders with respect to discovery; and
(5) A statement showing that the attorney making the motion has made a
reasonable effort to reach agreement with opposing attorneys on the
matters set forth in the motion.
Each party and his attorney are under a duty to participate in good faith in
the framing of a discovery plan if a plan is proposed by the attorney for any party.
Notice of the motion shall be served on all parties. Objections or additions to
matters set forth in the motion shall be served not later than 10 days after
service of the motion.
Following the discovery conference, the court shall enter an order tentatively
identifying the issues for discovery purposes, establishing a plan and schedule
for discovery, setting limitations on discovery, if any, and determining such
other matters, including the allocation of expenses, as are necessary for the
proper management of discovery in the action. An order may be altered or
amended whenever justice so requires.
Subject to the right of a party who properly moves for a discovery conference
to prompt convening of the conference, the court may combine the discovery
conference with a pretrial conference authorized by rule 16.
(g) Signing of Discovery Requests, Responses, and Objections. Every request
for discovery or response or objection thereto made by a party represented
by an attorney shall be signed by at least one attorney of record in his
individual name, whose address shall be stated. A party who is not
represented by an attorney shall sign the request, response, or objection
and state his address. The signature of the attorney or party constitutes
a certification that he has read the request, response, or objection, and
that to the best of his knowledge, information, and belief formed after a
reasonable inquiry it 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 a certification is made in violation of the rule, the court, upon motion or
upon its own initiative, shall impose upon the person who made the
certification, the party on whose behalf the 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 fee.
(h) Use of Discovery Materials. A party filing discovery materials on order of
the court or for use in a proceeding or trial shall file only those
portions upon which the party relies and may file a copy in lieu of the original.
(i) Motions; Conference of Counsel Required. The court will not entertain any
motion or objection with respect to rules 26 through 37 unless counsel
have conferred with respect to the motion or objection. Counsel for the
moving or objecting party shall arrange for a mutually convenient
conference in person or by telephone. If the court finds that counsel for
any party, upon whom a motion or objection in respect to matters covered
by such rules has been served, has willfully refused or failed to confer
in good faith, the court may apply the sanctions provided under rule
37(b). Any motion seeking an order to compel discovery or obtain
protection shall include counsels certification that the conference
requirements of this rule have been met.
(j) Access to Discovery Materials Under RCW 4.24.
(1) In General. For purposes of this rule, "discovery materials" means
depositions, answers to interrogatories, documents or electronic data
produced and physically exchanged in response to requests for
production, and admissions pursuant to rules 26-37.
(2) Motion. The motion for access to discovery materials under the
provisions of RCW 4.24 shall be filed in the court that heard the
action in which the discovery took place. The person seeking access
shall serve a copy of the motion on every party to the action, and on
nonparties if ordered by the court.
(3) Decision. The provisions of RCW 4.24 shall determine whether the
motion for access to discovery materials should be granted.
[Amended effective July 1, 1972; September 1, 1985; September 1, 1989; December
28, 1990; September 1, 1992; September 17, 1993; September 1, 1995, January 12, 2010.]
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