Rule 26. General provisions governing discovery. - North Carolina Statutes

Article5.

Depositions andDiscovery.

Rule 26. General provisionsgoverning 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 otherproperty, for inspection and other purposes; physical and mental examinations;and requests for admission.

(b)        Discovery scope andlimits. – Unless otherwise limited by order of the court in accordance withthese rules, the scope of discovery is as follows:

(1)        In General. –Parties may obtain discovery regarding any matter, not privileged, which isrelevant to the subject matter involved in the pending action, whether it relatesto the claim or defense of the party seeking discovery or to the claim ordefense of any other party, including the existence, description, nature,custody, condition and location of any books, documents, or other tangiblethings and the identity and location of persons having knowledge of anydiscoverable matter. It is not ground for objection that the information soughtwill be inadmissible at the trial if the information sought appears reasonablycalculated to lead to the discovery of admissible evidence nor is it groundsfor objection that the examining party has knowledge of the information as towhich discovery is sought.

Thefrequency or extent of use of the discovery methods set forth in section (a)shall be limited by the court if it determines that: (i) the discovery soughtis unreasonably cumulative or duplicative, or is obtainable from some othersource that is more convenient, less burdensome, or less expensive; (ii) theparty seeking discovery has had ample opportunity by discovery in the action toobtain the information sought; or (iii) the discovery is unduly burdensome orexpensive, taking into account the needs of the case, the amount incontroversy, limitations on the parties' resources, and the importance of theissues at stake in the litigation. The court may act upon its own initiativeafter reasonable notice or pursuant to a motion under section (c).

(2)        InsuranceAgreements. – A party may obtain discovery of the existence and contents of anyinsurance agreement under which any person carrying on an insurance businessmay be liable to satisfy part or all of a judgment which may be entered in theaction or to indemnify or reimburse for payments made to satisfy the judgment.Information concerning the insurance agreement is not by reason of disclosureadmissible in evidence at trial. For purposes of this subsection, anapplication for insurance shall not be treated as part of an insuranceagreement.

(3)        Trial Preparation;Materials. – Subject to the provisions of subsection (b)(4) of this rule, aparty may obtain discovery of documents and tangible things otherwisediscoverable under subsection (b)(1) of this rule and prepared in anticipationof litigation or for trial by or for another party or by or for that otherparty's consultant, surety, indemnitor, insurer, or agent only upon a showingthat the party seeking discovery has substantial need of the materials in thepreparation of his case and that he is unable without undue hardship to obtainthe substantial equivalent of the materials by other means. In orderingdiscovery of such materials when the required showing has been made, the courtmay not permit disclosure of the mental impressions, conclusions, opinions, orlegal theories of an attorney or other representative of a party concerning thelitigation in which the material is sought or work product of the attorney orattorneys of record in the particular action.

Aparty may obtain without the required showing a statement concerning the actionor its subject matter previously made by that party. Upon request, a person nota party may obtain without the required showing a statement concerning theaction or its subject matter previously made by that person. If the request isrefused, 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 purposesof this paragraph, a statement previously made is (i) a written statementsigned or otherwise adopted or approved by the person making it, or (ii) a stenographic,mechanical, electrical, or other recording, or a transcription thereof, whichis a substantially verbatim recital of an oral statement by the person makingit and contemporaneously recorded.

(4)        Trial Preparation;Experts. – Discovery of facts known and opinions held by experts, otherwisediscoverable under the provisions of subsection (b)(1) of this rule andacquired or developed in anticipation of litigation or for trial, may beobtained only as follows:

a.         1.         Aparty may through interrogatories require any other party to identify eachperson whom the other party expects to call as an expert witness at trial, tostate the subject matter on which the expert is expected to testify, and tostate the substance of the facts and opinions to which the expert is expectedto testify and a summary of the grounds for each opinion.

2.         Upon motion, thecourt may order further discovery by other means, subject to such restrictionsas to scope and such provisions, pursuant to subdivision (b)(4)c [(b)(4)b] ofthis rule, concerning fees and expenses as the court may deem appropriate.

b.         Unless manifestinjustice would result, (i) the court shall require that the party seekingdiscovery pay the expert a reasonable fee for time spent in responding todiscovery under subdivision (b)(4)a2 of this rule; and (ii) with respect todiscovery obtained under subdivision (b)(4)a2 of this rule the court mayrequire the party seeking discovery to pay the other party a fair portion ofthe fees and expenses reasonably incurred by the latter party in obtainingfacts and opinions from the expert.

(c)        Protective orders.– Upon motion by a party or by the person from whom discovery is sought, andfor good cause shown, the judge of the court in which the action is pending maymake any order which justice requires to protect a party or person fromunreasonable  annoyance, embarrassment, oppression, or undue burden or expense,including one or more of the following: (i) that the discovery not be had; (ii)that the discovery may be had only on specified terms and conditions, includinga designation of the time or place; (iii) that the discovery may be had only bya method of discovery other than that selected by the party seeking discovery;(iv) that certain matters not be inquired into, or that the scope of thediscovery be limited to certain matters; (v) that discovery be conducted withno one present except persons designated by the court; (vi) that a depositionafter being sealed be opened only by order of the court; (vii) that a trade secretor other confidential research, development, or commercial information not bedisclosed or be disclosed only in a designated way; (viii) that the partiessimultaneously file specified documents or information enclosed in sealedenvelopes to be opened as directed by the court.

If the motion for a protectiveorder is denied in whole or in part, the court may, on such terms andconditions as are just, order that any party or person provide or permitdiscovery. The provisions of Rule 37(a)(4) apply to the award of expensesincurred in relation to the motion.

(d)        Sequence and timingof discovery. – Unless the court upon motion, for the convenience of partiesand witnesses and in the interests of justice, orders otherwise, methods ofdiscovery may be used in any sequence and the fact that a party is conductingdiscovery, whether by deposition or otherwise, shall not operate to delay anyother party's discovery. Any order or rule of court setting  the time withinwhich discovery must be completed shall be construed to fix the date afterwhich the pendency of discovery will not be allowed to delay trial or any otherproceeding before the court, but shall not be construed to prevent any partyfrom utilizing any procedures afforded under Rules 26 through 36, so long astrial or any hearing before the court is not thereby delayed.

(e)        Supplementation ofresponses. – A party who has responded to a request for discovery with aresponse that was complete when made is under no duty to supplement hisresponse to include information thereafter acquired, except as follows:

(1)        A party is under aduty seasonably to supplement his response with respect to any questiondirectly addressed to (i) the identity and location of persons having knowledgeof discoverable matters, and (ii) the identity of each person expected to becalled as an expert witness at trial, the subject matter on which he isexpected to testify, and the substance of his testimony.

(2)        A party is under aduty seasonably to amend a prior response if he obtains information upon thebasis of which (i) he knows that the response was incorrect when made, or (ii)he knows that the response though correct when made is no longer true and thecircumstances are such that a failure to amend the response is in substance a knowingconcealment.

(3)        A duty to supplementresponses may be imposed by order of the court, agreement of the parties, or atany time prior to trial through new requests for supplementation of priorresponses.

(f)         Discoveryconference. – At any time after commencement of an action the court may directthe attorneys for the parties to appear before it for a conference on thesubject of discovery. The court may do so upon motion by the attorney for anyparty if the motion includes:

(1)        A statement of theissues as they then appear;

(2)        A proposed plan andschedule of discovery;

(3)        Any limitationsproposed to be placed on discovery;

(4)        Any other proposedorders with respect to discovery; and

(5)        A statement showingthat the attorney making the motion has made a reasonable effort to reachagreement with opposing attorneys on the matters set forth in the motion. Eachparty and his attorney are under a duty to participate in good faith in theframing of a discovery plan if a plan is proposed by the attorney for anyparty. Notice of the motion shall be served on all parties. Objections oradditions to matters set forth in the motion shall be served not later than 10days after service of the motion.

Following the discoveryconference, the court shall enter an order tentatively identifying the issuesfor discovery purposes, establishing a plan and schedule for discovery, settinglimitations on discovery, if any; and determining such other matters, includingthe allocation of expenses, as are necessary for the proper management ofdiscovery in the action. An order may be altered or amended whenever justice sorequires.

Subject to the right of aparty who properly moves for a discovery  conference to prompt convening of theconference, the court may combine the discovery conference with a pretrialconference authorized by Rule 16.

(f1)       Medical malpracticediscovery conference. – In a medical malpractice action as defined in G.S. 90‑21.11,upon the case coming at issue or the filing of a responsive pleading or motionrequiring a determination by the court, the judge shall, within 30 days, directthe attorneys for the parties to appear for a discovery conference.  At theconference the court may consider the matters set out in Rule 16, and shall:

(1)        Rule on all motions;

(2)        Establish anappropriate schedule for designating expert witnesses, consistent with adiscovery schedule pursuant to subdivision (3),  to be complied with by allparties to the action such that there is a deadline for designating all expertwitnesses within an appropriate time for all parties to implement discoverymechanisms with regard to the designated expert witnesses;

(3)        Establish by orderan appropriate discovery schedule designated so that, unless good cause isshown at the conference for a longer time, and subject to further orders of thecourt, discovery shall be completed within 150 days after the order is issued;nothing herein shall be construed to prevent any party from utilizing anyprocedures afforded under Rules 26 through 36, so long as trial or any hearingbefore the court is not thereby delayed; and

(4)        Approve any consentorder which may be presented by counsel for the parties relating to parts (2)and (3) of this subsection, unless the court finds that the terms of theconsent order are unreasonable.

If a party fails to identifyan expert witness as ordered, the court shall, upon motion by the moving party,impose an appropriate sanction, which may include dismissal of the action,entry of default against the defendant, or exclusion of the testimony of theexpert witness at trial.

(g)        Signing ofdiscovery requests, responses, and objections. – Every request for discovery orresponse or objection thereto made by a party represented by an attorney shallbe signed by at least one attorney of record in his individual name, whoseaddress shall be stated. A party who is not represented by an attorney shallsign the request, response, or objection and state his address. The signatureof the attorney or party constitutes a certification that he has read therequest, response, or objection and that to the best of his knowledge,information, and belief formed after a reasonable inquiry it is: (1) consistentwith the rules and warranted by existing law or  a good faith argument for theextension, modification, or reversal of existing law; (2) not interposed forany improper purpose, such as to harass or cause unnecessary delay or needlessincrease in the cost of litigation; and (3) not unreasonable or undulyburdensome or expensive, given the needs of the case, the discovery already hadin the case, the amount in controversy, and the importance of the issues atstake in the litigation. If a request, response, or objection is not signed, itshall be stricken unless it is signed promptly after the omission is called tothe attention of the party making the request, response, or objection and aparty shall not be obligated to take any action with respect to it until it issigned.

If a certification is made inviolation of the rule, the court, upon motion or upon its own initiative, shallimpose upon the person who made the certification, the party on whose behalfthe request, response, or objection is made, or both, an appropriate sanction,which may include an order to pay the amount of the reasonable expensesincurred because of the violation, including a reasonable attorney's fee. (1967,c. 954, s. 1; 1971, c. 750; 1975, c. 762, s. 2; 1985, c. 603, ss. 1‑4;1987, c. 859, s. 3.)