FRCP 35 examinations: good cause, a court order, and the report exchange that waives privilege

Every other federal discovery device runs on a notice or a request. Rule 35 is different: a physical or mental examination requires a motion, good cause, and a court order, every time.

And the report provisions carry a trap. Requesting the examiner's report — or deposing the examiner — waives privilege over all examinations of the same condition, in that action and any other involving the same controversy.

When an examination can be ordered

Rule 35(a)(1):

The court where the action is pending may order a party whose mental or physical condition — including blood group — is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control.

Three elements.

A party — or someone in a party's custody or legal control, which is how a parent is ordered to produce a child.

Whose condition is "in controversy." Not merely relevant. A plaintiff claiming physical injury puts their physical condition in controversy; a defendant's condition usually is not in controversy at all.

A suitably licensed or certified examiner. The 1991 amendment replaced "physician" with this broader phrase, which is what allows examinations by psychologists and other licensed professionals.

The order — and what it must contain

Rule 35(a)(2): the order

(A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and (B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.

Subparagraph (A) sets three requirements: a motion, good cause, and notice — including to the person to be examined, who may not be a party.

Subparagraph (B) is a checklist for the order itself, and it is where the real negotiation happens. Six specified items:

An order that omits any of them is incomplete on the face of the rule. If you are opposing, this is the provision to work — most disputes are resolved by conditions rather than by refusal.

The report exchange

Rule 35(b) sets up a reciprocal exchange, and it is optional until you start it.

Rule 35(b)(1) — the examinee asks:

The party who moved for the examination must, on request, deliver to the requester a copy of the examiner's report, together with like reports of all earlier examinations of the same condition. The request may be made by the party against whom the examination order was issued or by the person examined.

Rule 35(b)(2) — what the report must contain:

The examiner's report must be in writing and must set out in detail the examiner's findings, including diagnoses, conclusions, and the results of any tests.

Rule 35(b)(3) — and then the moving party asks:

After delivering the reports, the party who moved for the examination may request — and is entitled to receive — from the party against whom the examination order was issued like reports of all earlier or later examinations of the same condition. But those reports need not be delivered by the party with custody or control of the person examined if the party shows that it could not obtain them.

The exchange is sequential and reciprocal. The examinee requests; the moving party delivers; the moving party then becomes entitled to the examinee's own reports on the same condition, earlier or later.

The waiver

Rule 35(b)(4):

By requesting and obtaining the examiner's report, or by deposing the examiner, the party examined waives any privilege it may have — in that action or any other action involving the same controversy — concerning testimony about all examinations of the same condition.

Read that carefully, because the scope is wide.

Two triggers. Requesting and obtaining the report, or deposing the examiner. Either one waives.

The waiver covers "all examinations of the same condition" — not just the Rule 35 examination.

And it extends to "any other action involving the same controversy." The waiver does not stay in the case where it happened.

So the decision to ask for the report is a real one. In most cases the report is worth having and the waiver is academic, because the plaintiff has already put the condition in issue and produced treating records. But where there are parallel proceedings, or examinations the examinee would rather not surface, the calculation changes.

Rule 35(b)(5) — enforcing delivery: the court on motion may order, on just terms, that a party deliver the report. "If the report is not provided, the court may exclude the examiner's testimony at trial."

That sanction runs against the party who withholds — including, notably, against the moving party whose own examiner's report is not delivered.

Rule 35(b)(6) — agreed examinations: subdivision (b) "applies also to an examination made by the parties' agreement, unless the agreement states otherwise."

This matters. Parties who stipulate to an examination to avoid motion practice import the whole report-and-waiver scheme by default. If you want different terms, the agreement has to say so.

How Rule 35 differs from the rest of discovery

Rule 26(b)(4)(D)'s protection for non-testifying experts is also relevant here: facts known or opinions held by an expert retained in anticipation of litigation and not expected to testify are discoverable only as Rule 35(b) provides, or on a showing of exceptional circumstances. So Rule 35(b) is itself the gateway that makes certain examination material discoverable at all.

How the federal rule compares

California is the outlier: CCP 2032.220 allows a defendant in a personal injury case to demand one physical examination without leave, subject to conditions. Every other examination there needs a motion, as in federal practice. The guide on California depositions and discovery covers the wider scheme.

A short checklist

If you are seeking an examination

1. Establish that the condition is genuinely in controversy, not merely relevant.
2. Move, with good cause, and give notice to the person to be examined as well as to the parties.
3. Draft the order to Rule 35(a)(2)(B) — time, place, manner, conditions, scope, and the examiner. An order missing any of those invites a dispute later.
4. Deliver your examiner's report on request — and remember you may then demand the examinee's own reports on the same condition, earlier or later.
5. If reports are withheld, move under Rule 35(b)(5) — and note that exclusion of the examiner's testimony is the stated consequence, which cuts against you too.

If you are the examinee

1. Contest the terms, not just the examination. The six items in Rule 35(a)(2)(B) are where conditions get set — duration, recording, who attends, which tests.
2. Think before requesting the report. Requesting and obtaining it, or deposing the examiner, waives privilege over all examinations of the same condition — including in other actions involving the same controversy.
3. If you agree to an examination rather than litigating it, say so in the agreement if you want different report or waiver terms. Otherwise Rule 35(b) applies in full.

Where these rules live

• FRCP 26 — Duty to disclose; general provisions governing discovery
• FRCP 30 — Depositions by oral examination
• FRCP 34 — Producing documents, electronically stored information, and tangible things
• FRCP 35 — Physical and mental examinations
• FRCP 37 — Failure to make disclosures or to cooperate in discovery; sanctions
• FRCP 45 — Subpoena

This page explains what the rules say. It isn't legal advice, and what puts a condition "in controversy" or establishes good cause is decided under case law this site doesn't cover.