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Rule 21. General Provisions

(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 or mental examinations; and requests for admission.

(b) Scope of Discovery.  Unless otherwise limited by order of the court in accordance with these rules, parties may obtain discovery regarding any matter, not privileged, that 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, electronically stored information, 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.

(c) Privilege Log.  When a party withholds materials or information otherwise discoverable under this rule by claiming that the same is privileged, the party shall promptly and expressly notify the opposing party of the privilege claim and, without revealing the contents or substance of the materials or information at issue, shall describe its general character with sufficient specificity as to enable other parties to assess the applicability of the privilege claim.  Failure to comply with this requirement shall be deemed a waiver of any and all privileges.

(d) Discovery Abuse; Sanction. 

    (1)  The court may impose appropriate sanctions against a party or counsel for engaging in discovery abuse.  Upon a finding that discovery abuse has occurred, the court should normally impose sanctions unless the offending party or counsel can demonstrate substantial justification for the conduct at issue or other circumstances that would make the imposition of sanctions unfair.  Discovery abuse includes, but is not limited to, the following:

        (A)  employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or undue burden or expense;

        (B) employing discovery methods otherwise available which result in legal expense disproportionate to the matters at issue;

        (C)  making, without substantial good faith justification, an unmeritorious objection to discovery;

        (D)  responding to discovery in a manner which the responding party knew or should have known was misleading or evasive;

        (E)  producing documents or other materials in a disorganized manner or in a manner other than the form in which they are regularly kept;

        (F)  failing to confer with an opposing party or attorney in a good faith effort to resolve informally a dispute concerning discovery;

    (2)  The sanctions which may be imposed for discovery abuse include, but are not limited to, the following:

        (A)  a monetary sanction in an amount equal to the unnecessary expenses incurred, including reasonable attorney’s fees, as the result of the abusive conduct;

        (B)  an issue sanction that orders that designated facts be taken as established by the party who has been adversely affected by the abuse;

        (C)  an evidence sanction that prohibits the offending party from introducing certain matters into evidence;

        (D)  a terminating sanction that strikes all or parts of the claims or defenses, enters full or partial judgment in favor of the plaintiff or defendant, or stays the proceeding until ordered discovery has been provided.

(e)  Trial Preparation.

    (1)  A party may obtain discovery of documents, electronically stored information and tangible things otherwise discoverable 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 or her attorney, non-attorney representative, 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 or her case and that he or she 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.

    (2)  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.  For purposes of this paragraph, a statement previously made is (i) a written statement signed or otherwise adopted or approved by the person making it, or (ii) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

(f)  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.

(g)  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 or her response to include information thereafter acquired, except as follows:

    (1)  A party is under a duty seasonably to supplement his or her 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 or she is expected to testify, and the substance of his or her testimony.

    (2)  A party is under a duty seasonably to amend a prior response if he or she obtains information upon the basis of which (a) he or she knows that the response was incorrect when made, or (b) he or she knows that the response, though correct when made, is no longer true.

    (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.


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