Rule 63.Physical, Mental or Behavioral Health, and Vocational Evaluations

Rule 63 covers examinations of a party whose physical or mental condition, or ability to work, is in controversy -- and of a person in that party's custody or legal control.

Two routes to an examination

By order, on motion for good cause with notice to all parties and the person to be examined, by agreement, or on the court's own motion. The order must specify the time, place, manner, conditions and scope, and identify who will perform it.

By notice, where the parties agree an examination is appropriate but not on the examiner. The moving party gives reasonable written notice -- not fewer than 30 days -- identifying the person to be examined, the time, place and scope, and the examiner. A party who objects to the examiner may move, and for good cause the court may designate a different expert. Unless a protective-order motion under Rule 53(a) is filed, the party must appear or produce the person, and failing to do so exposes them to orders under Rule 65(a)(4).

The distinction at the center of the rule

At a physical or vocational examination the person examined has the right to have a representative present and to make a video or audio recording, unless the court determines it may adversely affect the outcome.

At a mental or behavioral health examination they have neither, unless the examiner agrees or the court orders it. The reason is clinical rather than adversarial: an observer or a recorder changes what a psychological evaluation measures. Where a recording is made under either provision, a copy must be provided to any party on request.

The report

The examiner's report must be in writing and set out the findings in detail, including diagnoses, conclusions and test results. The party examined -- or who produced the person examined -- may request it, and within 20 days of the examination or the request, whichever is later, must receive the report and all written or recorded notes made by the examiner and by the person examined at the time, plus access to the originals for comparison.

Absent good cause, the party examined must then disclose reports of all other examinations for the same condition -- except a vocational exam protected as work product.

No waiver

Section (e)(4) states it plainly: an examination under this rule does not waive any privilege the examined party is otherwise entitled to assert. Submitting to a court-ordered evaluation does not open the rest of that person's treatment history to the other side.