TITLE FIVE — DEPOSITION AND DISCOVERY
Rule 19. General Provisions Governing Discovery
Discovery Methods. Parties may obtain discovery by one or more of the following methods except as otherwise provided in these rules: depositions upon oral examination or written questions; written interrogatories; production of documents, electronically stored information, or tangible things, or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise, or unless otherwise provided in these rules, the frequency of use of these methods is not limited.
Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the claim or defense of any party and proportional to the needs of the case, 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 username and location of each person having knowledge of any discoverable matter.
Proportionality. In determining whether discovery is proportional to the needs of the case, the court shall consider the importance of the issues at stake in the action; the amount in controversy, measured against the compensatory and punitive damages recoverable upon the claims pleaded, including the limits fixed by 7 R. Stat. §§ 121.001–121.404 and, where the government is a party, by 7 R. Stat. § 122.003; the parties’ relative access to relevant information; the parties’ resources; the importance of the discovery in resolving the issues; the time remaining in the pre-trial period allowed by Rule 6(1); and whether the burden or expense of the proposed discovery outweighs its likely benefit. A party asserting that discovery is disproportional bears the burden of showing it. The court may impose a limitation under this paragraph on motion or on its own initiative.
Admissibility Not Required. Information within the scope of discovery need not be admissible in evidence to be discoverable. 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.
Specific Limitation on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On a motion to compel discovery or for a protective order, the person from whom discovery is sought bears the burden of showing that the information is not reasonably accessible. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, and may specify conditions for the discovery, including the allocation of expenses.
Limitations on Frequency and Extent.
Presumptive Limits. Unless the parties stipulate under Rule 22 or the court orders otherwise:
no deposition upon oral examination shall exceed two (2) hours on the record, exclusive of recesses;
no party shall serve upon any other party more than fifteen (15) written interrogatories, including all discrete subparts; and
no party shall serve upon any other party more than twenty-five (25) requests for admission, excluding requests to admit the genuineness of a described document or item of electronically stored information.
Alteration by Order. By order, the court may increase or decrease any limit stated in Rule 19(3)(a), may limit the number of requests for production under Rule 26 and the number of items or categories within any such request, may limit the number of physical and mental examinations under Rule 26.2, and may prescribe the sequence and phasing of discovery. Leave to exceed a presumptive limit shall be granted to the extent consistent with Rule 19(2).
When the Court Must Limit. On motion or on its own initiative, the court shall limit the frequency or extent of discovery otherwise allowed by these rules if it determines that:
the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
the proposed discovery is outside the scope permitted by Rule 19(2).
Trial Preparation: Materials.
Documents and Tangible Things. Ordinarily, a party may not discover documents, electronically stored information, or tangible things that are prepared in anticipation of litigation or for trial by or for another party or that party’s representative, including the other party’s attorney, consultant, indemnitor, insurer, or agent. Subject to Rule 19(5), those materials may be discovered if they are otherwise discoverable under Rule 19(2) and the party seeking them shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
Protection Against Disclosure. If the court orders discovery of those materials, it shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.
A Person’s Own Previous Statement. Any party or other person may, on request and without the showing required by Rule 19(4)(a), obtain that person’s own previous statement about the action or its subject matter. If the request is refused, the person may move for an order, and Rule 26.3(2) applies to the award of expenses. A previous statement is a written statement that the person has signed or otherwise adopted or approved; a message transmitted from the person’s own account in the proceeding communications, in a direct message, or in an in-game chat; or a recording, or a transcription of a recording, that recites substantially verbatim the person’s oral statement.
Trial Preparation: Experts.
Retained Experts; Written Report. A party shall disclose the identity of each witness it may use at trial to present evidence under Rid. R. Evid. 702. Unless the parties stipulate or the court orders otherwise, the disclosure shall be accompanied by a written report, prepared and signed by the witness, if the witness is one retained or specially employed to provide expert testimony in the action or one whose duties as the party’s employee regularly involve giving expert testimony. The report shall contain:
a complete statement of all opinions the witness will express and the basis and reasons for them;
the facts or data considered by the witness in forming them;
any exhibits that will be used to summarize or support them, identified in the form in which they will be offered;
the witness’s qualifications, stating the knowledge, skill, experience, training, or education relied upon under Rid. R. Evid. 702;
a list of every other action in the courts of this State in which the witness testified as an expert at trial or by deposition within the preceding six (6) months, identified by case number; and
a statement of the compensation to be paid for the study and testimony in the action.
Witnesses Who Do Not Provide a Written Report. If the witness is not required to provide a written report, including a treating provider, a responding peace officer, or any other person whose opinion arises from participation in the events at issue rather than from retention, the disclosure shall state the subject matter on which the witness is expected to present evidence under Rid. R. Evid. 702 and a summary of the facts and opinions to which the witness is expected to testify. A party shall not evade Rule 19(5)(a) by designating as non-retained a witness who was retained or specially employed.
Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. Where Rule 19(5)(a) requires a report, the deposition may be conducted only after the report has been served.
Draft Reports and Disclosures. Rule 19(4)(a) and Rule 19(4)(b) protect drafts of any report or disclosure required under this subdivision, regardless of the form in which the draft is recorded, and regardless of whether the draft was recorded in a message, a document, or a file stored on a trusted file hosting service.
Communications Between a Party’s Attorney and a Retained Expert. Rule 19(4)(a) and Rule 19(4)(b) protect communications between the party’s attorney and any witness required to provide a report under Rule 19(5)(a), regardless of the form of the communications and regardless of the platform on which they occurred, except to the extent that the communications:
relate to compensation for the expert’s study or testimony;
identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or
identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.
Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. A party may do so only as provided in Rule 26.2(2), or on a showing of exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
Payment. Unless manifest injustice would result, the court shall require the party seeking discovery to pay the expert a reasonable fee for time spent in responding to discovery under Rule 19(5)(c) or Rule 19(5)(f), and, for discovery under Rule 19(5)(f), also to pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert’s facts and opinions. A fee paid under this paragraph is taxable as a cost to the prevailing party as provided by 7 R. Stat. § 132.201.
Court-Appointed Experts. This subdivision does not limit the court’s authority to appoint an expert under Rid. R. Evid. 706 and Rule 31.
Claims of Privilege or Protection of Trial Preparation Materials.
Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged under Rid. R. Evid. 501 through 510 or subject to protection as trial-preparation material, the party shall:
expressly make the claim; and
describe the nature of the documents, communications, electronically stored information, or tangible things not produced or disclosed, and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
A description under this paragraph shall be served in a single log identifying, for each item withheld, its date and time in Coordinated Universal Time, its type, the usernames of its author and of each recipient, the privilege or protection claimed, and the request to which it is responsive. The log shall be served with the response in which the claim is made, or within twenty-four (24) hours thereafter. The court, upon motion, may order the withholding party to provide such additional information as is necessary to assess the claim of privilege, and may examine the withheld material in camera in the manner the presiding judge directs. A party who fails to serve a log within the time allowed may be held to have waived the claim as to the items not logged.
Information Mistakenly Produced; Claim of Privilege. 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 shall promptly return, sequester, or destroy the specified information and any copies it has, including copies stored on a trusted file hosting service or posted in the proceeding communications; shall not use or disclose the information until the claim is resolved; shall take reasonable steps to retrieve the information if the party disclosed it before being notified; and may present the information to the court for a determination of the claim. The producing party shall preserve the information until the claim is resolved. Information presented to the court under this paragraph shall not be tendered to the electronic filing system, which provides no capacity to seal, redact, or withdraw a document, and shall instead be presented in the manner the presiding judge directs. In resolving any such claim, the court shall determine whether:
the disclosure was inadvertent;
the holder of the privilege or protection took reasonable steps to prevent disclosure; and
the holder promptly took reasonable steps to rectify the error.
Protective Orders.
Motion; Certification. 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, on matters relating to a deposition, the court 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. The motion shall include a certification that the movant has in good faith conferred or attempted to confer with the other affected persons in an effort to resolve the dispute without court action, stating the time in Coordinated Universal Time at which the conferral was made or attempted and the means by which it was made.
Orders Available. An order under this subdivision may provide:
that the discovery not be had;
that the discovery may be had only on specified terms and conditions, including a designation of the time, place, channel, or manner, or the allocation or sharing of costs;
that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
that the discovery be conducted with no person present or admitted to the channel except persons designated by the court;
that the record of a deposition be held by a designated person and disclosed only to designated persons or upon order of the court;
that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; and
that the parties exchange specified documents or information simultaneously and directly, and not tender them to the electronic filing system, to be presented to the court only as the court directs.
Protective Orders Operate Against Persons. The electronic filing system provides no document-level sealing and no redaction tooling; confidentiality attaches to a matter only by case type. An order under this subdivision therefore operates against persons. It binds each person named in it and that person’s attorneys, agents, and employees, and it is enforced by proceedings for civil contempt under Rule 53. No order under this subdivision shall direct the Clerk to seal, redact, remove, or amend a document upon the docket, or direct the electronic filing system to withhold a filing from the public docket. A person bound by an order under this subdivision shall not tender material covered by the order to the electronic filing system.
Ordering Discovery; Expenses. 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. Rule 26.3(2) applies to the award of expenses on a motion under this subdivision.
Sequence and Timing of Discovery.
Time Runs Continuously. Every period stated in hours or days in this Title runs continuously in Coordinated Universal Time from the moment of the event that begins it, without regard to court days, business days, holidays, or the hour of the day. No period in this Title is computed, tracked, or enforced by the electronic filing system. A party who claims that a period has expired shall raise it by motion.
When Discovery May Be Sought. A party may serve discovery under this Title at any time after the time for a responsive pleading to that party’s claim has begun to run, or earlier by stipulation under Rule 22 or by leave of court. Discovery shall be served and completed within the pre-trial period allowed by Rule 6(1), unless that period is enlarged under Rule 6(2). A request or notice served so late that the time to respond or to appear would expire after the close of the pre-trial period is untimely and requires leave of court.
Sequence. Unless the parties stipulate or 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.
Conference of the Parties; Discovery Plan.
Duty to Confer. The attorneys of record and every unrepresented party who has appeared shall confer in the proceeding communications as soon as practicable, and in any event before the pre-trial conference under Rule 13, to consider the nature and basis of their claims and defenses, the possibility of settlement, the disclosures required by Rule 19.1, any issue about preserving discoverable information, and a proposed discovery plan.
Contents of the Plan. A proposed discovery plan shall state the parties’ views and proposals on: any change in the timing, form, or requirement of the disclosures required by Rule 19.1; the subjects on which discovery may be needed and when discovery should be completed within the period allowed by Rule 6(1); whether discovery should be conducted in phases or limited to particular issues; any issue about the disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced and the platform on which it resides; any issue about claims of privilege or of protection as trial-preparation material, including any agreed procedure for asserting such claims after production; any change to the presumptive limits of Rule 19(3)(a); and any order the court should enter under Rule 19(7) or Rule 13.
Submission. The parties shall submit the proposed discovery plan to the court at or before the pre-trial conference. A plan adopted by the court is an order for the purposes of Rule 26.3(3).
Failure to Participate. Rule 26.3(8) applies to a failure to participate in good faith in framing a discovery plan.
Supplementing Disclosures and Responses. A party who has made a disclosure under Rule 19.1, or who has responded to an interrogatory, a request for production, or a request for admission, shall supplement or correct the disclosure or response in a timely manner, and in any event within twenty-four (24) hours after the party learns that in some material respect the disclosure or response is incomplete or incorrect, unless the additional or corrective information has otherwise been made known to the other parties during the discovery process or in the proceeding communications. The duty to supplement extends to information included in an expert’s report under Rule 19(5)(a) and to information given during an expert’s deposition. The court may order supplementation at any time. Rule 26.3(4) applies to a failure to supplement.
Signing Disclosures, Requests, Responses, and Objections.
Signature Required. Every disclosure under Rule 19.1 and every discovery request, response, and objection shall be signed by at least one attorney of record for the party or, if the party is unrepresented, by the party. Transmission of the disclosure, request, response, or objection from the account of that attorney or party constitutes the signature of that person.
Certification. By signing, the person certifies that to the best of that person’s knowledge, information, and belief formed after a reasonable inquiry:
a disclosure is complete and correct as of the time it is made; and
a request, response, or objection is consistent with these rules and warranted by existing law or a good-faith argument for its extension, modification, or reversal; is not interposed for any improper purpose, including to harass, to cause unnecessary delay, or needlessly to increase the cost of litigation; and is neither unreasonable nor unduly burdensome given the needs of the case, the discovery already had, and the amount in controversy.
Failure to Sign. Another party has no duty to act on an unsigned disclosure, request, response, or objection, and it may be treated as a nullity on motion.
Sanction. If a certification violates this subdivision without substantial justification, the court, on motion or on its own initiative and after notice and an opportunity to be heard, shall impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both, which may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation. A sanction sought under 7 R. Stat. §§ 132.301 or 132.302 is governed by the requirements of 7 R. Stat. §§ 132.303 and 132.304.
Service of Discovery Material; Discovery Material Not Filed.
Service. Disclosures, discovery requests, responses, objections, notices, and productions under this Title shall be served upon every other party in the proceeding communications, or by direct message to the party’s attorney of record or, if the party is unrepresented, to the party. Service is complete when the material is transmitted, and the time of transmission recorded by the platform, expressed in Coordinated Universal Time, is the time of service.
Not Filed. Discovery material is not a filing. It shall not be tendered to the electronic filing system unless and until it is used in a proceeding before the court, offered in evidence, or attached to a motion or response to which it is material. This subdivision does not excuse compliance with Rule 5 as to any paper that is filed.
Proof of Service. A party who serves discovery material shall retain the means of demonstrating service, which may be shown before the court by photograph, GIF, or video of the transmission. The electronic filing system does not record, verify, or prove service of discovery material.
Governmental Material. Where a party seeks a sensitive policy, procedure, order, or directive of the government that relates to an issue in the action, the material shall be sought by subpoena as provided by 7 R. Stat. § 122.101(b), and, in an action alleging abuse of process, as provided by 7 R. Stat. § 121.402(b).
Reference to a Magistrate Judge. A judge of the Superior Court may assign a magistrate judge to hear and determine any motion arising under this Title as a non-dispositive matter, as provided by 3 R. Stat. § 131.203, except that no such assignment shall be made in a civil proceeding in which the State is a party. A motion under Rule 26.3(3) that seeks dismissal, default judgment, or the striking of a pleading is dispositive, and a magistrate judge to whom it is referred shall issue proposed findings, a report, and recommendations, which shall have no effect unless adopted, modified, or rejected by the Superior Court judge.