Section 7. Disclosure and Discovery
Rule 49. Disclosure
The requirements of this rule are minimum disclosure requirements for every family law case. Unless otherwise provided for in this rule or agreed to by the parties, within forty (40) days after the filing of a response to an initial petition, each party shall disclose in writing to every other party the information set forth in this rule.
A. Resolution Statement. Each party shall disclose a written Resolution Statement in a form that substantially complies with Rule 97, Form 4 or 5, as applicable, setting forth any agreements and a specific, detailed position the party proposes to resolve all issues in the case, without argument in support of the position.
B. Child Support. In a case in which child support is an issue, each party shall disclose the following information:
1. a fully completed Affidavit of Financial Information on a form substantially in compliance with Rule 97, Form 2;
2. proof of income of the party from all sources, specifically including complete tax returns, W–2 forms, 1099 forms, and K–1 forms, for the past two (2) completed calendar years, and year–to–date income information for the current calendar year, including, but not limited to, year–to–date pay stub, salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, worker's compensation benefits, unemployment insurance benefits, disability insurance benefits, recurring gifts, prizes, and spousal maintenance;
3. proof of court–ordered child support and spousal maintenance actually paid by the party in any case other than the one in which disclosure is being provided;
4. proof of all medical, dental, and vision insurance premiums paid by the party for any child listed or referenced in the petition;
5. proof of any child care expenses paid by the party for any child listed or referenced in the petition;
6. proof of any expenses paid by the party for private or special schools or other particular education needs of a child listed or referenced in the petition; and
7. proof of any expenses paid by the party for the special needs of a gifted or handicapped child listed or referenced in the petition.
C. Spousal Maintenance and Attorneys' Fees and Costs. If either party has requested an award of spousal maintenance or an award of attorneys' fees and costs, each party shall disclose the following information:
1. a fully completed Affidavit of Financial Information on a form substantially in compliance with Rule 97, Form 2; and
2. those documents set forth in subdivision B(2) above.
D. Property. Unless the parties have entered into a written agreement disposing of all property issues in the case, or no property is at issue in the case, each party shall provide to the other the following information in every action for dissolution of marriage or for legal separation:
1. copies of all deeds, deeds of trust, purchase agreements, escrow documents, settlement sheets, and all other documents that disclose the ownership, legal description, purchase price and encumbrances of all real property owned by any party;
2. copies of all monthly or periodic bank, checking, savings, brokerage and security account statements in which any party has or had an interest for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure;
3. copies of all monthly or periodic statements and documents showing the value of all pension, retirement, stock option, and annuity balances, including Individual Retirement Accounts, 401(k) accounts, and all other retirement and employee benefits and accounts in which any party has or had an interest for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure, or if no monthly or quarterly statements are available during this time period, the most recent statements or documents that disclose the information;
4. copies of all monthly or periodic statements and documents showing the cash surrender value, face value, and premiums charged for all life insurance policies in which any party has an interest for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure, or if no monthly or quarterly statements are available for this time period, the most recent statements or documents that disclose the information;
5. copies of all documents that may assist in identifying or valuing any item of real or personal property in which any party has or had an interest for the period commencing six (6) months prior to the filing of the petition, including any documents that the party may rely upon in placing a value on any item of real or personal property;
6. copies of all business tax returns, balance sheets, profit and loss statements, and all documents that may assist in identifying or valuing any business or business interest for the last two (2) completed calendar or fiscal years with respect to any business or entity in which any party has or had an interest; and
7. a list of all items of personal property, including, but not limited to, household furniture, furnishings, antiques, artwork, vehicles, jewelry and similar items in which any party has an interest, together with the party's estimate of current fair market value (not replacement value) for each item.
E. Debts. Unless the parties have entered into a written agreement disposing of all debt issues in the case, each party shall provide to the other the following information in every action for dissolution of marriage or for legal separation:
1. copies of all monthly or periodic statements and documents showing the balances owing on all mortgages, notes, liens, and encumbrances outstanding against all real property and personal property in which the party has or had an interest for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure, or if no monthly or quarterly statements are available during this time period, the most recent statements or documents that disclose the information; and
2. copies of credit card statements and debt statements for all months for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure.
F. Disclosure of Witnesses. Each party shall disclose names, addresses, and telephone numbers of any witness whom the disclosing party expects to call at trial, along with a statement fairly describing the substance of each witness's expected testimony. A party shall not be allowed to call a witness who has not been disclosed at least sixty (60) days before trial, or such different period as may be ordered by the court.
G. Disclosure of Expert Witnesses. Each party shall disclose the name and address of each person whom the disclosing party expects to call as an expert witness at trial, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, a summary of the grounds for each opinion, the qualifications of the witness, and the name and address of the custodian of copies of any reports prepared by the expert. A party shall not be allowed to call an expert witness who has not been disclosed at least sixty (60) days before trial or such different period as may be ordered by the court.
H. Continuing Duty to Disclose. The duty described in this rule shall be a continuing duty, and each party shall make additional or amended disclosures whenever new or different information is discovered or revealed. Such additional or amended disclosures shall be made not more than thirty (30) days after the information is revealed to or discovered by the disclosing party.
I. Additional Discovery. Nothing in the minimum requirements of this rule shall preclude relevant additional discovery on request by a party in a family law case, in which case further discovery may proceed as set forth in Rule 51.
Rule 50. Complex Case Disclosure
Not later than twenty (20) days after filing of a responsive pleading, if a party believes more detailed disclosure is necessary than that set forth in Rule 49, that party shall file a notice with the court that disclosure pursuant to Rule 26.1, Arizona Rules of Civil Procedure, shall be required. If this rule is timely invoked, disclosure shall be made within forty (40) days after the filing of the notice.
Rule 51. Discovery
A. 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, 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, 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 paragraph A may be limited by the court if it determines that:
a. the discovery sought is unreasonably cumulative or duplicative, or 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, given 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 Rule 53.
2. Trial Preparation: Materials. Subject to the provisions of subdivision B(3), a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision B(1) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney or consultant) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party 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. If the request is refused, the person may move for a court order. The provisions of Rule 65(A)(4) apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, 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 a substantially verbatim recital of an oral statement by the person making it and is contemporaneously recorded.
3. Trial Preparation: Experts.
a. A party may depose any person who has been identified as an expert whose opinions may be presented at trial.
b. A party may, through interrogatories or by 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 preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 63(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, (1) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions B(3)(a) and B(3)(b); and (2) with respect to discovery obtained under subdivision B(3)(b), 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.
C. Sequence and Timing of Discovery. Unless the court upon motion 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.
D. Supplementation of Responses.
1. A party is under a duty to supplement any response to a request for discovery, and in any event not later than thirty (30) days prior to trial, except for good cause shown, if:
a. the party knows the response was incorrect when made; or
b. the party knows the response, though correct when made, is no longer true; and
c. the circumstances are such that a failure to amend the response is in substance a knowing concealment.
2. Any witness or evidence not timely disclosed shall not be permitted at trial except for good cause shown or upon written agreement of the parties.
3. A duty to supplement responses may also 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.
E. Discovery Requests, Responses, Objections, and Sanctions. The court shall assess an appropriate sanction, including any order under Rule 76(D), against any party or attorney who has engaged in unreasonable, groundless, abusive, or obstructionist conduct.
F. Discovery Motions. No discovery motion will be considered or scheduled unless a separate statement of moving counsel is attached thereto certifying that, after personal consultation and good faith efforts to do so, counsel have been unable to satisfactorily resolve the matter.
Rule 52. Subpoena
A. Form; Issuance.
1. Every subpoena shall:
a. state the name of the Arizona court from which it is issued; and
b. state the title of the action, the name of the court in which it is pending, and its civil action number; and
c. command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified; and
d. set forth the recipients' rights and obligations under the subpoenas as follows:
Your Duties In Responding To This Subpoena:
You have the duty to produce the documents requested as they are kept by you in the usual course of business, or you may organize the documents and label them to correspond with the categories set forth in this subpoena. See Rule 52(D)(1) of the Arizona Rules of Family Law Procedure.
If this subpoena asks you to produce and permit inspection and copying of designated books, papers, documents, tangible things, or the inspection of premises, you need not appear to produce the items unless the subpoena states that you must appear for a deposition, hearing, or trial. See Rule 52(C)(2)(a) of the Arizona Rules of Family Law Procedure.
Your Right To Object:
The party or attorney serving the subpoena has a duty to take reasonable steps to avoid imposing an undue burden or expense on you. The Superior Court enforces this duty and may impose sanctions upon the party or attorney serving the subpoena if this duty is breached. See Rule 52(C)(1) of the Arizona Rules of Family Law Procedure.
You may object to this subpoena if you feel that you should not be required to respond to the request(s) made. Any objection to this subpoena must be made within 14 days after it is served upon you, or before the time specified for compliance, by providing a written objection to the party or attorney serving the subpoena. See Rule 52(C)(2)(b) of the Arizona Rules of Family Law Procedure.
If you object because you claim the information requested is privileged or subject to protection as trial preparation material, you must express the objection clearly and support each objection with a description of the nature of the document, communication or item not produced so that the demanding party can contest the claim. See Rule 52(D)(2) of the Arizona Rules of Family Law Procedure.
If you object to the subpoena in writing, you do not need to comply with the subpoena until a court orders you to do so. It will be up to the party or attorney serving the subpoena to seek an order from the court to compel you to provide the documents or inspection requested, after providing notice to you. See Rule 52(C)(2)(b) of the Arizona Rules of Family Law Procedure.
If you are not a party to the litigation, or an officer of a party, the court will issue an order to protect you from any significant expense resulting from the inspection and copying commanded. See Rule 52(C)(2)(b) of the Arizona Rules of Family Law Procedure.
You also may file a motion in the superior court of the county in which the case is pending to quash or modify the subpoena if the subpoena:
(1) does not provide a reasonable time for compliance;
(2) requires a non–party or officer of a party to travel to a county different from the county where the person resides or does business in person; or to travel to a county different from where the subpoena was served; or to travel to a place farther than 40 miles from the place of service; or to travel to a place different from any other convenient place fixed by an order of a court, except that a subpoena for you to appear and testify at trial can command you to travel from any place within the state;
(3) requires the disclosure of privileged or protected information and no waiver or exception applies; or
(4) subjects you to an undue burden. See Rule 52(C)(3)(d) of the Arizona Rules of Family Law Procedure.
If this subpoena:
(1) requires disclosure of a trade secret or other confidential research, development, or commercial trade information; or
(2) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party; or
(3) requires a person who is not a party or an officer of a party to incur substantial travel expense,
the court may either quash or modify the subpoena, or the court may order you to appear or produce documents only upon specified conditions, if the party who served the subpoena shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that you will be reasonably compensated. See Rule 52(C)(3)(d)(3) of the Arizona Rules of Family Law Procedure.
A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately.
2. A subpoena commanding attendance at a trial or hearing shall issue from the superior court for the county in which the hearing or trial is to be held. A subpoena for attendance at a deposition shall issue from the superior court for the county in which the case is pending. If separate from a subpoena commanding the attendance of a person, a subpoena for production or inspection shall issue from the superior court for the county in which the production or inspection is to be made.
3. The clerk shall issue a subpoena signed, but otherwise blank, to a party requesting it, who shall complete it before service.
1. A subpoena may be served by any person who is not a party and is not less than eighteen years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and, if the person's attendance is commanded, by tendering to that person the fees for one day's attendance and the mileage allowed by law. When the subpoena is issued on behalf of the state or an officer or agency thereof, fees and mileage need not be tendered. Prior notice of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 43(C).
2. A subpoena may be served anywhere within the state.
3. Proof of service when necessary shall be made by filing with the clerk of the court of the county in which the case is pending a statement of the date and manner of service and of the names of the persons served, certified by the person who made service.
C. Protection of Persons Subject to Subpoenas.
1. Sanctions. A party or an attorney responsible for the service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The superior court of the county where the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee.
2. Personal Appearance; Objections.
a. A person commanded to produce and permit inspection and copying of designated books, papers, documents, or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing, or trial.
b. Subject to subdivision D(2), the recipient may, within fourteen (14) days after the service of the subpoena or before the time specified for compliance if such time is less than fourteen (14) days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or inspection of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court from which the subpoena was issued. If objection has been made, the party serving the subpoena, upon notice to the recipient, may move at any time for an order to compel the production or inspection. Such an order to compel production or inspection shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.
3. Quashing or Modifying Subpoena. On timely motion, the superior court of the county in which the case is pending or from which a subpoena was issued may quash or modify the subpoena if it:
a. fails to allow reasonable time for compliance;
b. requires a person who is not a party or an officer of a party to travel to a place other than the county in which the person resides or transacts business in person or is served with a subpoena, or within forty (40) miles from the place of service, or such other convenient place fixed by an order of court, except that, subject to the provisions of subdivision C(3)(g), such a person may in order to attend trial be commanded to travel from any such place within the state or appear by electronic means, as approved by the court;
c. requires disclosure of privileged or other protected matter and no exception or waiver applies;
d. subjects a person to undue burden;
e. requires disclosure of a trade secret or other confidential research, development, or commercial information;
f. requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party; or
g. requires a person who is not a party or an officer of a party to incur substantial travel expense.
D. Duties in Responding to Subpoena.
1. A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.
2. When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made in writing and shall be supported by a description of the nature of the documents, communications, or things not produced, sufficient to enable the demanding party to contest the claim.
E. Contempt. Failure of any person, without adequate cause, to obey a subpoena properly served may be deemed a contempt of the superior court of the county from which the subpoena issued. Adequate cause for failure to obey exists when a subpoena purports to require a non–party to attend or produce at a place not within the limits provided by subdivision A(1)(d)(2).
F. Failure to Produce Documentary Evidence. Upon failure to produce documentary evidence as provided in this rule, secondary evidence of the books, papers, documents or tangible things may be offered at trial.
G. ADA Notification. The subpoena shall state that "Requests for reasonable accommodation for persons with disabilities must be made to the court by parties at least three (3) working days in advance of a scheduled court proceeding."
H. Service on Other Parties. Unless otherwise stipulated or ordered by the court, documents obtained by subpoena shall be copied or made available to the other parties, whether or not intended to be used at trial, not later than fourteen (14) days after receipt of the documents. In the event the trial or hearing is set in fewer than fourteen (14) days after receipt of the documents, disclosure shall be made not later than three (3) days prior to the trial or hearing. The cost to copy the subpoenaed documents for another party initially shall be paid by such other party, subject to further order of the court.
Rule 53. Protective Orders Regarding Discovery Requests
A. Protection of Persons Subject to Discovery Request. Subject to paragraph B of this rule, upon motion by a party or by the person from whom discovery or disclosure 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 or disclosure not be had;
2. that the discovery or disclosure may be had only on specified terms and conditions, including a designation of the time or place;
3. that the discovery or disclosure may be had only by a method of discovery or disclosure other than that selected by the party seeking discovery or disclosure;
4. that certain matters not be inquired into, or that the scope of the discovery or disclosure be limited to certain matters;
5. that discovery or disclosure be conducted with no one present except persons designated by the court;
6. that a deposition, after being sealed, be opened only by order of the court;
7. 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 or disclosure. The provisions of Rule 65(A)(4) apply to the award of expenses incurred in relation to the motion.
B. Confidentiality Order. Before entering an order in any way restricting a party or person from disclosing information or materials produced in discovery or disclosure to a person who is not a party to the litigation in which the information or materials are being discovered or disclosed, or denying an intervener's request for access to such discovery or disclosure materials, a court shall direct: (1) the party seeking confidentiality to show why a confidentiality order should be entered or continued; and (2) the party or intervener opposing confidentiality to show why a confidentiality order should be denied in whole or part, modified or vacated. The burden of showing good cause for an order shall remain with the movant. The court shall then make findings of fact concerning any relevant factors, including but not limited to: (1) any party's need to maintain the confidentiality of such information or materials; (2) any intervener's need to obtain access to such information or materials; and (3) any possible risk to the safety or financial welfare to which such information or materials may relate or reveal. Any order restricting release of such information or materials to nonparties or interveners shall use the least restrictive means to maintain any needed confidentiality. No such findings of fact are needed where the parties have stipulated to such an order or where a motion to intervene and to obtain access to materials subject to a confidentiality order are not opposed.
Rule 54. Depositions before Action or Pending Appeal
A. Before Action; Petition; Notice and Service; Order and Examination; Use of Deposition.
1. A person who desires to perpetuate that person's own testimony or that of another person regarding any matter that may be cognizable in any court may file a verified petition in the superior court in the county of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show:
a. that the petitioner expects to be a party to an action cognizable in a court but is presently unable to bring it or cause it to be brought;
b. the subject matter of the expected action and the petitioner's interest therein;
c. the facts that the petitioner desires to establish by the proposed testimony and the reasons for desiring to perpetuate it;
d. the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known; and
e. the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each. The petition shall also ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.
2. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty (20) days before the date of hearing the notice shall be served either within or without the state in the manner provided in Rule 41 or Rule 42 for service of summons, but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise, and shall appoint, for persons not served in the manner provided in Rule 41 or Rule 42, an attorney who shall represent them, and, in case they are not otherwise represented, shall cross–examine the deponent. If any expected adverse party is a minor or incompetent, the provisions of Rule 10(H) shall apply.
3. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with these rules, and the court may make orders of the character provided for by Rules 62 and 63. For the purpose of applying these rules to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.
4. If a deposition to perpetuate testimony is taken under these rules, it may be used in any action involving the same subject matter subsequently brought, in accordance with the provisions of Rule 59(A).
B. Pending Appeal. If an appeal has been taken from a judgment of a superior court or before taking an appeal if the time therefore has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the court. In such case the party who desires to perpetuate the testimony may make a motion in the court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the court. The motion shall show the names and addresses of the persons to be examined, the substance of the testimony which the party expects to elicit from each and the reasons for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for by Rules 62 and 63, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in the superior court.
Rule 55. Persons before Whom Depositions May Be Taken
A. Within the United States; Commission or Letters Rogatory. Within the United States or within a territory or insular possession subject to the jurisdiction of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States, the State of Arizona, or of the place where the examination is held, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony. Depositions may be taken in this state or anywhere upon notice provided by these rules without a commission, letters rogatory or other writ. The term "officer," as used in Rules 57, 58 and 59, includes a person appointed by the court or designated by the parties under Rule 56.
Upon proof that the notice to take a deposition outside this state has been given as provided by these rules, the party seeking such deposition may, but is not required, after one full day's notice to the other parties, have issued by the clerk, in the form given in such notice, a commission or letters rogatory or other like writ either in lieu of the notice to take the deposition or supplementary thereto. Failure to file written objections to such form before or at the time of its issuance shall be a waiver of any objection thereto. Any objection shall be heard and determined forthwith by the court or judge thereof.
B. In Foreign Countries. In a foreign country, depositions may be taken (1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States, or (2) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony, or (3) pursuant to a letter rogatory. A commission or a letter rogatory shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter rogatory may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by the name or descriptive title. A letter rogatory may be addressed "To the Appropriate Authority in (here name the country)." Evidence obtained in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these rules.
C. Disqualification for Interest. No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action.
Rule 56. Stipulations Regarding Discovery Procedure
Unless the court orders otherwise, the parties may by stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and (2) modify the procedures provided by these rules for other methods of discovery, including extending the time provided in Rules 60, 61, 62, and 64 for responses to discovery.
Rule 57. Depositions upon Oral Examination
A. When Depositions May Be Taken. After commencement of the action, the testimony of parties or their current spouses, or any expert witnesses expected to be called, may be taken by deposition upon oral examination. Depositions of document custodians may be taken to secure production of documents and to establish evidentiary foundation. No other depositions shall be taken except upon: (1) agreement of all parties; (2) an order of the court following a motion demonstrating good cause; or (3) an order of the court following a Resolution Management Conference pursuant to Rule 76(A).
If the petitioner or other party seeks to take a deposition prior to the expiration of thirty (30) days after service of the summons and petition upon any respondent or other party or service that is completed under Rule 42, leave of court, granted with or without notice, is required, except that leave is not required: (1) if a respondent or other party has served a notice of taking deposition or otherwise sought discovery, or (2) if special notice is given as provided in subdivision B(2). The attendance of witnesses may be compelled by subpoena as provided in Rule 52. The deposition of a person in confinement may be taken only by leave of court on such terms as the court prescribes.
B. Notice of Examination; General Requirements; Special Notice; Non–Stenographic Recording; Production of Documents and Things; Deposition of Organization; Deposition by Telephone.
1. Absent a stipulation of all parties to the action or an order of the court authorizing a briefer notice, a party desiring to take the deposition of any person upon oral examination shall give notice in writing to every other party to the action at least ten (10) days prior to the date of the deposition. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice.
2. Leave of court is not required for the taking of a deposition by petitioner or other party initiating an action if the notice (a) states that the person to be examined is about to go out of the State of Arizona and will be unavailable for examination unless the person's deposition is taken before expiration of the 30–day period, and (b) sets forth facts to support the statement. The petitioner's or other initiating party's attorney shall sign the notice, and the attorney's signature constitutes a certification by the attorney that to the best of the attorney's knowledge, information, and belief the statement and supporting facts are true. The sanctions provided by Rule 31(A) are applicable to the certification. If a party shows that when the party was served with notice under subdivision B(2) the party was unable through the exercise of diligence to obtain counsel to represent the party at the taking of the deposition, the deposition may not be used against the party.
3. The court may for cause shown enlarge or shorten the time for taking the deposition.
4. The parties may stipulate in writing or the court may upon motion order that the testimony at a deposition be recorded by other than stenographic means. The stipulation or order shall designate the person before whom the deposition shall be taken, the manner of recording, preserving and filing the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. A party may arrange to have a stenographic transcription made at the party's own expense. Any changes made by the witness, the witness' signature identifying the deposition as the witness' own, or the statement of the officer that is required if the witness does not sign as provided in paragraph E, and the certification of the officer required by paragraph F shall be set forth in a writing to accompany a deposition recorded by nonstenographic means.
5. The notice to a party deponent may be accompanied by a request made in compliance with Rule 62 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 62 shall apply to the request.
6. A party may, in the party's notice, name as the deponent a public or private corporation, a partnership, an association, or a governmental agency and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf and may set forth, for each person designated, the matters on which that person will testify. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision B(6) does not preclude taking a deposition by any other procedure authorized in these rules.
7. The parties may stipulate or the court may order that a deposition be taken by telephone. For the purpose of this rule and Rules 55(A), 65(A)(1), 52(C)(3), and 52(E), a deposition is taken in the county where the deponent is to answer questions propounded to the deponent.
C. Examination and Cross–Examination; Record of Examination; Oath; Objections. Examination and cross–examination of witnesses may proceed as permitted at the trial under the provisions of Rule 2(B). The examination shall commence at the time and place specified in the notice or within thirty (30) minutes thereafter and, unless otherwise stipulated or ordered, will be continued on successive days, except Saturdays, Sundays and legal holidays, until completed. Any party not present within thirty (30) minutes following the time specified in the notice of taking deposition waives any objection that the deposition was taken without that party's presence. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under the officer's direction and in the officer's presence, record the testimony of the witness. If the deposition is taken telephonically and the witness is not physically in the presence of the officer before whom the deposition is to be taken, the officer may nonetheless place the witness under oath with the same force and effect as if the witness were physically present before the officer. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with subdivision B(4). If requested by one of the parties, the testimony shall be transcribed. If the testimony is transcribed, the party noticing the deposition or the party causing the deposition to be taken shall be responsible for the cost of the original transcript.
All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. The court shall assess an appropriate sanction, including a sanction provided for under Rule 76(D), against any party or attorney who has engaged in unreasonable, groundless, abusive or obstructionist conduct. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and the party taking the deposition shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.
D. Length of Deposition; Motion to Terminate or Limit Examination. Depositions shall be of reasonable length. The oral deposition of any party or witness, including expert witnesses, whenever taken, shall not exceed four (4) hours in length, except pursuant to stipulation of the parties or upon motion and a showing of good cause. The court shall impose sanctions pursuant to Rule 76(D) for unreasonable, groundless, abusive or obstructionist conduct.
At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the county where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 53. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 65(A)(4) apply to the award of expenses incurred in relation to the motion.
E. Submission to Witness; Changes; Signing. When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by the witness, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness within thirty (30) days of its submission to the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed unless on a motion to suppress under Rule 59(D)(4) the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.
F. Certification and Filing by Officer; Exhibits; Copies; Notice of Filing; Preservation of Verbatim Recording of Depositions.
1. The officer shall certify on the deposition that the witness was duly sworn by the officer and that the deposition is a true record of the testimony given by the witness. Documents and things produced for inspection during the examination of the witness, shall, upon the request of a party, be marked for identification and annexed to the deposition, and may be inspected and copied by any party, except that if the person producing the materials desires to retain them the person may (1) offer copies to be marked for identification and annexed to the deposition and to serve thereafter as originals if the person affords to all parties fair opportunity to verify the copies by comparison with the originals, or (2) offer the originals to be marked for identification, after giving to each party an opportunity to inspect and copy them, in which event the materials may then be used in the same manner as if annexed to the deposition. Any party may move for an order that the original be annexed to and returned with the deposition to the court, pending final disposition of the case.
2. Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent.
3. The officer shall retain all original stenographic notes and tapes of any deposition and a copy of the recording of any deposition taken by another method in such place and manner as to ensure their availability to the court or any party upon request. In no event, however, shall such original notes or stenographic tapes be retained in any location outside the State of Arizona. The officer shall retain stenographic notes, tapes, and copies of recordings taken by another method according to records retention and disposition schedules and purge lists adopted by the Supreme Court.
G. Failure to Attend or to Serve Subpoena; Expenses.
1. If the party giving the notice of the taking of a deposition fails to attend and proceed therewith, and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by that party and that party's attorney in attending, including reasonable attorney's fees.
2. If the party giving the notice of the taking of a deposition of a non–party witness fails to serve a subpoena upon the witness, and the witness because of such failure does not attend, and if another party attends in person or by attorney because that party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by that party and that party's attorney in attending, including reasonable attorneys' fees.
Rule 58. Depositions upon Written Questions
A. Serving Questions; Notice. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 52. The deposition of a person in confinement may be taken only by leave of court on such terms as the court prescribes. A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating (1) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs, and (2) the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with the provisions of Rule 57(B)(6). Within thirty (30) days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within ten (10) days after being served with cross questions, a party may serve redirect questions upon all other parties. Within ten (10) days after being served with redirect questions, a party may serve re–cross questions upon all other parties. The court may for cause shown enlarge or shorten the time.
B. Officer to Take Responses and Prepare Record. A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by Rule 57(C), (E), and (F), to take the testimony of the witness in response to the questions and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the questions received by the officer.
Rule 59. Use of Depositions in Court Proceedings
A. Use of Depositions. At the trial or at any hearing any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, and had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. The party who seeks admission of said testimony by deposition may do so without proof of the deponent's unavailability to testify at trial. Nothing contained in this rule shall be construed to limit in any way the right of any party to call the deposed witness to testify in person at trial.
If only part of a deposition is offered in evidence by a party, the court may require the offeror to introduce contemporaneously any other part which ought in fairness to be considered together with the part introduced.
Substitution of parties pursuant to Rule 37 does not affect the right to use depositions previously taken. When an action has been brought in any court of the United States or of any state, and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefore. A deposition previously taken may also be used as permitted by Rule 2(B) of these rules.
B. Objections to Admissibility. Subject to the provisions of Rule 55(B) and subdivision (D)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason that would require the exclusion of the evidence if the witness were then present and testifying.
C. Form of Presentation. A party offering deposition testimony may offer it in the form permitted by Rules 57(B)(4) and (C). A party intending to offer deposition testimony at trial or hearing shall designate the portions to be offered by page and line reference and the party or parties against whom they will be offered. This designation shall be made in any pretrial or prehearing statement required by the court. If deposition testimony is offered in any form for any purpose, the offering party shall provide the court with a transcript of the portions offered.
D. Effect of Errors and Irregularities in Depositions.
1. As to Notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.
2. As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.
3. As to Taking of Deposition.
a. Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
b. Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.
c. Objections to the form of written questions submitted under Rule 58 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within five (5) days after service of the last questions authorized.
d. Objections to the form of the question or responsiveness of the answer shall be concise, and shall not suggest answers to the witness. No specification of the defect in the form of the question or the answer shall be stated unless requested by the party propounding the question. Argumentative interruptions shall not be permitted.
e. Continuous and unwarranted off the record conferences between the deponent and counsel following the propounding of questions and prior to the answer or at any time during the deposition are prohibited. This conduct is subject to the proscriptions of subdivision D(3)(d) and the sanctions prescribed in Rule 65.
4. As to completion and return of deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 57 and 58 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.
Rule 60. Interrogatories to Parties
A. Availability; Procedures for Use. Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may be served without leave of court upon the petitioner after commencement of the action and upon any other party with or after service of the summons and petition upon that party. Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within forty (40) days after the service of the interrogatories, except that a respondent may serve answers or objections within sixty (60) days after service of the summons and petition upon that defendant respondent, or execution of a waiver of service, by that respondent. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Rule 65(A) with respect to any objection to or other failure to answer an interrogatory.
B. Scope; Use at Trial. Interrogatories may relate to any matters which can be inquired into under Rule 51(B), and the answers may be used to the extent permitted by Rule 2(B) of these rules. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time.
C. Option to Produce Business, Medical, Therapeutic, Psychological, Psychiatric, Employment, and Income Tax or Education Records. Where the answer to an interrogatory may be derived or ascertained from the business, medical, therapeutic, psychological, psychiatric, employment, and income tax or education records of the party upon whom the interrogatory has been served or that party's minor child or children, or from an examination, audit, or inspection of such business, medical, therapeutic, psychological, psychiatric, employment, and income tax or education records, including a compilation, abstract, or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit, or inspect such records and to make copies, compilations, abstracts, or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be derived or ascertained. The party responding to the interrogatory shall provide appropriate and specific signed releases to the propounding party authorizing that party's access to the specific information.
Rule 61. Uniform and Non–Uniform Interrogatories; Limitations; Procedure
A. Presumptive Limitations. Except as provided in these rules, a party shall not serve upon any other party more than forty (40) interrogatories, which may be any combination of uniform or non–uniform interrogatories. Any uniform interrogatory and its subparts shall be counted as one interrogatory. Any subpart to a non–uniform interrogatory shall be considered as a separate interrogatory.
B. Stipulations to Serve Additional Interrogatories. If a party believes that good cause exists for the service of more than forty (40) interrogatories upon any other party, that party shall consult with the party upon whom the additional interrogatories would be served and attempt to secure a written stipulation as to the number of additional interrogatories that may be served.
C. Leave of Court to Serve Additional Interrogatories. If a stipulation permitting the service of additional interrogatories is not secured, a party desiring to serve additional interrogatories may do so only by leave of court. Upon written motion or application showing good cause therefore, the court in its discretion may grant to a party leave to serve a reasonable number of additional interrogatories upon any other party. The party seeking leave to serve additional interrogatories shall have the burden of establishing that the issues presented in the action warrant the service of additional interrogatories, or that such additional interrogatories are a more practical or less burdensome method of obtaining the information sought, or other good cause therefor. No such motion or application may be heard or considered by the court unless accompanied by the proposed additional interrogatories to be served, and by the certification of counsel required by Rule 65(A)(2)(c). The proposed additional interrogatories shall only be attached to the judge's copy of the motion and the copy served on opposing parties.
D. Spacing. Whenever interrogatories are used, a space sufficient for the answer shall be left immediately below the question. The answering party shall insert the answer in the space below each interrogatory, or if it requires more space, on a separate sheet which restates the question before giving the answer.
E. Non–uniform Interrogatories. The method of propounding and answering Non–Uniform Interrogatories shall be as follows.
1. A party propounding interrogatories, other than Uniform Interrogatories, shall serve upon the answering party, and not the clerk of the court, the original and one (1) copy of the interrogatories and shall serve a copy upon every other party.
2. The answering party shall, within the time permitted by law, serve upon the propounding party and all other parties one copy of the interrogatories and answers.
F. Uniform Interrogatories. The interrogatories set forth in Rule 97, Form 7, titled Uniform Family Law Interrogatories, are approved for use as a standard or guide in preparation by counsel of interrogatories under Rule 60. The use of Uniform Interrogatories shall be governed by Rule 60 and this rule. The use of Uniform Interrogatories is not mandatory and should serve as a guide only. They are not to be used as a standard set of interrogatories for submission in all cases. Each interrogatory should be used only where it fits the particular case. The method of propounding and answering Uniform Interrogatories shall be as follows:
1. A party propounding Uniform Interrogatories shall serve a copy of a Notice of Service of Uniform Interrogatories upon each other party to the action.
2. The Notice of Service of Uniform Interrogatories shall contain the names of the party and attorney to whom the request is made and each uniform interrogatory for which the propounding party requests an answer.
3. The answering party shall:
a. insert the answer below the propounded interrogatory; and
b. serve the original upon the propounding party and a copy upon all other parties.
Rule 62. Production of Documents and Things and Entry upon Land for Inspection and Other Purposes
A. Scope. Any party may serve on any other party requests (1) to produce and permit the party making the request, or someone acting on the requester's behalf, to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, and other data compilations from which information can be obtained, translated through detection devices into reasonable usable form when translation is practicably necessary) or to inspect and copy, test, or sample any tangible things that constitute or contain matters within the scope of Rule 51(B) and that are in the possession, custody, or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, appraising, inventorying personal property, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 51(B).
B. Procedure and Limitations. The requests may, without leave of court, be served upon the petitioner after commencement of the action and upon any other party with or after service of the summons and petition upon that party. The requests shall set forth the items to be inspected, either by individual item or by specific category, and describe each item and specific category with reasonable particularity. The request(s) shall not, without leave of court, cumulatively include more than ten (10) distinct items or specific categories of items. Each request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. If a party believes that good cause exists for more than ten (10) distinct items or categories of items, that party shall consult with the party upon whom a request would be served and attempt to secure a written stipulation to that effect. The party upon whom a request is served shall serve a written response within forty (40) days after the service of the request, except that a respondent may serve a response within sixty (60) days after service of the summons and petition upon that respondent, or execution of a waiver of service by that respondent. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting a request may move for an order under Rule 65(A) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested. A party who produced documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.
C. Persons not Parties. A person not a party to the action may be compelled to produce documents and things or to submit to an inspection as provided in Rule 52.
Rule 63. Physical, Mental and Vocational Evaluations of Persons
A. Order for Evaluation. When the mental, physical, or vocational condition of a party or any other person is in controversy, the court may order that person to submit to a physical, mental, or vocational evaluation by a designated expert or to produce for evaluation the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be evaluated (unless the person to be evaluated is a minor child of one or both of the parties), and to all parties and shall specify the time, place, manner, conditions, and scope of the evaluation and the person or persons by whom it is to be made. The person to be evaluated shall have the right to have a representative present during the evaluation, unless the presence of that representative may adversely affect the outcome of the evaluation. The person to be evaluated shall have the right to record by audiotape any physical evaluation. A mental or vocational evaluation may be recorded by audiotape, unless such recording may adversely affect the outcome of the evaluation. A copy of any record made of a physical, mental, or vocational evaluation shall be provided to any party upon request.
B. Report of Evaluator.
1. If requested by the party against whom an order is made under paragraph A or the person evaluated, the party causing the evaluation to be made shall deliver to the requester, within twenty (20) days of the evaluation, a copy of the detailed written report of the evaluator setting out the evaluator's findings, including the results of all tests made, diagnoses and conditions, together with like reports of all earlier evaluations of the same condition and copies of all written or recorded notes filled out by the evaluator and the person evaluated at the time of the evaluation, providing access to the original written or recorded notes for purposes of comparing same with the copies. After delivery the party causing the evaluation shall be entitled upon request to receive from the party against whom the order is made a like report of any evaluation, previously or thereafter made, of the same condition, unless, in the case of a report of evaluation of a person not a party, the party shows that such party is unable to obtain it. The court, on motion, may order a party to deliver a report on such terms as are just, and if any expert fails or refuses to make a report the court may exclude the expert's testimony.
2. By requesting and obtaining a report of the evaluation so ordered or by taking the deposition of the evaluator, the party evaluated waives any privilege the party may have in that action, or any other involving the same controversy, regarding the testimony of every other person who has evaluated or may thereafter evaluate the party in respect of the same mental, physical or vocational condition.
3. Paragraph B applies to evaluations made by agreement of the parties, unless the agreement expressly provides otherwise. Paragraph B does not preclude discovery of a report of any expert or the taking of a deposition of any expert in accordance with the provisions of any other rule.
C. Alternate Procedure; Notice of Evaluation; Objections.
1. When the parties agree that a mental, physical, or vocational evaluation is appropriate but do not agree as to the evaluator, the party desiring the evaluation may seek it by giving reasonable notice in writing to every other party to the action not less than thirty (30) days in advance. The notice shall specify the name of the person to be evaluated, the time, place and scope of the evaluation, and the person or persons by whom it is to be made. The person to be physically evaluated shall have the right to have a representative present during the evaluation, unless the presence of that representative may adversely affect the outcome of the evaluation. The person to be evaluated shall have the right to record by audiotape any physical evaluation. A mental or vocational evaluation may be recorded by audiotape, unless such recording may adversely affect the outcome of the evaluation. Upon good cause shown, a physical, mental, or vocational evaluation may be video–recorded. A copy of any record made of a physical, mental, or vocational evaluation shall be provided to any party upon request.
2. Upon motion by a party or by the person to be evaluated, and for good cause shown, the court in which the action is pending may, in addition to other orders appropriate under paragraph A, order that the evaluation be made by an expert other than the one specified in the notice. If a party after being served with a proper notice under this subdivision does not make a motion under this rule and fails to appear for the evaluation or to produce for the evaluation the person in the party's custody or legal control, the court in which the action is pending may, on motion, make such orders in regard to the failure as are just, such as those specified in Rule 65(D).
3. The provisions of paragraph B shall apply to an evaluation made under this paragraph C.
Rule 64. Requests for Admission
A. Request for Admission Regarding Authenticity of Documents. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 51(B) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request. The request may, without leave of court, be served upon the petitioner after commencement of the action and upon any other party with or after service of the summons and petition upon that party. Each matter for which an admission is requested shall be separately set forth. The matter is admitted unless, within forty (40) days after service of the request, or, in the case of a respondent, within sixty (60) days after service of the summons and petition upon that respondent or execution of a waiver of service by that respondent, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the authenticity of any document of documents or set forth in detail the reasons why the answering party cannot truthfully admit or deny the request. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter for which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. A party who considers that a matter for which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; the party may, subject to the provisions of Rule 65(C), deny the matter or set forth reasons why the party cannot admit or deny it. The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial.
B. Procedure. Each request shall contain only one (1) request for genuineness of all documents or categories of documents. Each party shall be entitled to submit no more than twenty–five (25) requests in any case without leave of court, except upon agreement of all parties or upon order of the court for good cause shown.
C. Effect of Admission. Any matter admitted under this rule is conclusively established unless the court for good cause shown permits withdrawal or amendment of the admission. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission for any other purpose, nor may it be used against the party in any other proceeding.
Rule 65. Failure to Make Disclosure or Discovery; Sanctions
A. Motion for Order Compelling Disclosure or Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling disclosure or discovery as follows.
1. Appropriate Court. An application for an order to a party may be made to the court in the county in which the action is pending, or, in matters relating to a deposition, to the court in the county where the deposition is being taken. An application for an order to a person who is not a party shall be made to the court in the county where the discovery is being, or is to be, taken.
a. If a party fails to make a disclosure required by Rule 49 or 50, any other party may move to compel disclosure and for appropriate sanctions.
b. If a deponent fails to answer a question propounded or submitted under Rule 57 or 58, or a corporation or other entity fails to make a designation under Rule 57(B)(6) or 58(A), or a party fails to answer an interrogatory submitted under Rule 60, or if a party, in response to a request for inspection submitted under Rule 61, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.
c. No motion brought under this rule will be considered or scheduled unless a separate statement of the moving party is attached thereto certifying that, after personal consultation and good faith efforts to do so, counsel have been unable to satisfactorily resolve the matter.
3. Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subdivision an evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond.
4. Expenses and Sanctions.
a. If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay the moving party the reasonable expenses incurred in making the motion, including attorneys' fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified or that other circumstances make an award of expenses unjust.
b. If the motion is denied, the court may enter any protective order authorized under Rule 53 and shall, after affording an opportunity to be heard, require the moving party or the attorney filing the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorneys' fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
c. If the motion is granted in part and denied in part, the court may enter any protective order authorized under Rule 53 and may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
B. Failure to Comply with Order.
1. Sanctions by court in county where deposition is taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the county in which the deposition is being taken, the failure may be considered a contempt of that court.
2. Sanctions by court in which action is pending. If a party or an officer, director, or managing agent of a party or a person designated under Rule 57(B)(6) or 58(A) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under paragraph A or Rule 63, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
a. an order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action, in accordance with the claim of the party obtaining the order;
b. an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;
c. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
d. in lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders, except an order to submit to a physical or mental examination;
e. where a party has failed to comply with an order under Rule 63(A) requiring that party to produce another for examination, such orders as are listed in subdivisions 2(a), (b), and (c) of this rule, unless the party failing to comply shows that that party is unable to produce such person for examination.
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorneys' fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
C. Failure to Disclose; False or Misleading Disclosure; Untimely Disclosure.
1. A party who fails to timely disclose information required by Rule 49 or 50 shall not, unless such failure is harmless, be permitted to use as evidence at trial, at a hearing, or on a motion, the information or witness not disclosed, except by leave of court for good cause shown. A party or attorney who makes a disclosure pursuant to Rule 49 or 50 that the party or attorney knew or should have known was inaccurate or incomplete and thereby causes an opposing party to engage in investigation or discovery, shall be ordered by the court to reimburse the opposing party for the cost, including attorneys' fees, of such investigation or discovery. In addition to or in lieu of these sanctions, the court on motion of a party or on the court's own motion, and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorneys' fees, caused by the failure, these sanctions may include any of the actions authorized under subdivisions 2(a), (b), and (c) under paragraph B and may include informing the jury of the failure to make the disclosure.
2. A party seeking to use information that that party first disclosed later than thirty (30) days before trial must obtain leave of court by motion, supported by affidavit, to extend the time for disclosure. Such information shall not be used unless the motion establishes and the court finds:
a. that the information would be allowed under the standards of subdivision C(1), notwithstanding the short time remaining before trial; and
b. that the information was disclosed as soon as practicable after its discovery.
3. A party seeking to use information that that party first disclosed during trial must obtain leave of court by motion, supported by affidavit, to extend the time for disclosure. Such information shall not be used unless the motion establishes and the court finds:
a. that the information could not have been discovered and disclosed earlier even with due diligence; and
b. that the information was disclosed immediately upon its discovery.
D. Failure to Disclose Unfavorable Information. A party's or attorney's knowing failure to timely disclose damaging or unfavorable information, as required pursuant to Rules 49 and 50 or in response to discovery propounded pursuant to these rules, shall be grounds for imposition of sanctions, in the court's discretion, up to and including dismissal of the claim or defense.