Rule 402.Additional Discovery

Part IV. Disclosure, Discovery, and Subpoena · Last amended July 1, 2021 · Last verified September 4, 2026

In one sentenceRule 402 allows additional discovery only after mandatory disclosure is complete, bars re-requesting what was already disclosed, and switches the discovery rules off entirely in protection order cases.

Full Text of Rule 402

Text sizeJump to: (a) (b) (c)

(a) Sequence and Timing of Discovery. Unless, on motion, the court orders otherwise, for the parties’ and witnesses’ convenience and in the interest of justice:

(1) a party may proceed with discovery only after that party has completed its mandatory disclosures under Rule 401;

(2) methods of discovery may be used in any sequence after mandatory disclosures are complete; and

(3) a party may not request information or documents in discovery that were previously disclosed pursuant to mandatory disclosures under Rule 401.

(b) Methods. Nothing in the minimum requirements of Rule 401 will preclude relevant additional discovery by a party in a family law case. If a party believes more detailed disclosure is necessary other than that set forth in Rule 401, that party may obtain discovery by one or more of the following methods:

(1) depositions on oral examination or written questions;

(2) written interrogatories;

(3) production of documents, electronically stored information, or tangible things;

(4) entry on land or other property for inspection or other purposes;

(5) physical, mental, and vocational examinations; and

(6) requests for admission.

(1) In General.

(A) Scope of Discovery. Unless otherwise limited by court order, the scope of discovery is as follows: parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense, including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause shown, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

(B) Limits on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of subsection (c)(1)(C). The court may specify conditions for the discovery.

(C) Limitation on Frequency and Extent of Discovery. Unless limited by these rules or the court orders otherwise, the frequency of use of discovery is not limited. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the discovery in resolving the issues.

(2) Limited Discovery in Civil Protection Order Actions. The discovery rules contained in these rules do not apply to civil protection order actions. For good cause shown, a party may move the court to engage in discovery. The motion must state with specificity the information sought. The motion for discovery may be heard at the 14 day hearing. The court will determine the scope of discovery, if any. The motion for discovery may cause the 14 day hearing to be continued for no more than 14 days and the temporary civil protection order may remain in effect until the date of the continued hearing.

(3) Trial Preparation; Materials.

(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things prepared in anticipation of litigation or for trial by or for another party or its representative (including the party’s attorney, consultant, surety, indemnitor, insurer, or agent). But subject to subsection (c)(4), those materials may be discovered if:

(i) they are otherwise discoverable under these rules; and

(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain the substantial equivalent by other means.

(B) Protection against Disclosure. If the court orders discovery of those materials, it must protect against disclosure the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative concerning the litigation.

(C) Previous Statement. Any party or other person may, on request and without showing undue hardship, obtain the person’s previous statement about the action or its subject matter. If the request is refused, the person may move for a court order and Rule 417(c)(5) applies to the award of expenses. A previous statement is either:

(i) a written statement that the person has signed or otherwise adopted or approved; or

(ii) a contemporaneous stenographic, mechanical, electrical, or other recording, or a transcription of it, that recites substantially verbatim the person’s oral statement.

(4) Trial Preparation; Experts.

(A) Deposition of Expert Allowed. A party may depose any person who has been disclosed as an expert witness.

(B) Further Discovery. The court may order further discovery of experts by other means, subject to restrictions set by the court as to the scope of discovery and the payment of expenses to the expert as provided by subsection (c)(7).

(C) Limitation on Contact with Expert. A party must not contact a retained expert disclosed by another party pursuant to these rules without first obtaining the permission of the party who retained the expert or the court.

(5) Trial Preparation Protection for Draft Reports or Disclosures. A draft disclosure or draft report prepared in anticipation of litigation by any witness disclosed under Rule 401 is protected from disclosure.

(6) Experts Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:

(A) as provided in Rule 416(b); or

(B) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.

(7) Payment of Fees of Experts; Apportionment. Unless manifest injustice would result, the court must require the party seeking discovery:

(A) to pay the expert a reasonable fee for time spent in responding to discovery under subsection (c)(6) OR Rule 401(i)(3);

(B) to pay the expert retained to provide expert testimony a reasonable fee for time spent testifying at a deposition; and

(C) to pay the other party a portion of the fees and expenses reasonably incurred in obtaining the facts and opinions of an expert not expected to testify as a witness pursuant to subsection (c)(6). The court has discretion to require such payment for discovery of the facts and opinions of an expert expected to testify under Rule 401(i)(3).

(8) Claiming Privilege or Protection; Trial Preparation Materials.

(A) Information Withheld. When a party withholds otherwise discoverable information by claiming that the information is privileged or subject to protection as trial preparation material, the party must:

(i) expressly make the claim; and

(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed, and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.

(B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it, and must preserve the information until the claim is resolved. After being notified, a party:

(i) must promptly return, sequester, or destroy the specified information and any copies it has;

(ii) must not use or disclose the information until the claim is resolved;

(iii) must take reasonable steps to retrieve the information if the party disclosed it before being notified; and

(iv) may promptly present the information to the court under seal for a determination of the claim.

(i) Signature Required; Effect of Signature. Every discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name, or by the party personally, if unrepresented, and must state the signer’s address and e-mail address. By signing, an attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry:

(a) with respect to a statement of fact, it is complete and correct as of the time it is made; and

(b) with respect to a discovery request, response, or objection, it is:

(1) consistent with these rules and warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law, or for establishing new law;

(2) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needlessly increase the cost of litigation; and

(3) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the litigation.

(ii) Failure to Sign. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney’s or party’s attention.

(iii) Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney fees, caused by the violation.

End

Rule History

(Adopted March 29, 2021, effective July 1, 2021.)

Plain-English Summary

Rule 401 is what every party owes. Rule 402 is what a party may go and get — and it is gated.

The gate

Unless the court orders otherwise: a party may proceed with discovery only after completing its own mandatory disclosures; methods may then be used in any sequence; and a party may not request information or documents already disclosed under Rule 401.

All three matter. Discovery is unavailable to a party who has not disclosed. And re-asking for Rule 401 material is prohibited, so the answer to an inadequate disclosure is a Rule 417 motion, not a document request.

Methods

Depositions on oral examination or written questions, written interrogatories, production of documents and electronically stored information, entry on land, physical, mental and vocational examinations, and requests for admission.

Scope

Any non-privileged matter relevant to a claim or defense, including the existence, description, custody, condition and location of documents and the identity of persons who know of discoverable matter. For good cause the court may reach any matter relevant to the subject matter. Information need not be admissible if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

Frequency is not limited — but the court must limit discovery that is unreasonably cumulative or duplicative or available more conveniently elsewhere, that the party has had ample opportunity to obtain, or whose burden outweighs its likely benefit considering the needs of the case, the amount in controversy, the parties' resources, and the importance of the issues. Electronically stored information from sources not reasonably accessible because of undue burden or cost need not be produced, subject to a good-cause showing.

Protection order cases are outside all of it

Subsection (c)(2) is emphatic: the discovery rules do not apply to civil protection order actions. A party must move, for good cause, stating with specificity the information sought. The motion may be heard at the 14-day hearing, the court sets the scope if any, and the motion may continue that hearing no more than 14 days — with the temporary order remaining in effect until the continued date.

Work product and experts

Materials prepared in anticipation of litigation are ordinarily protected, reachable on a showing of substantial need and inability to obtain the substantial equivalent without undue hardship — with mental impressions, conclusions, opinions and legal theories protected even then. Any person may obtain their own previous statement without any showing.

A disclosed expert may be deposed. A party must not contact another party's retained expert without permission of the retaining party or the court. Draft disclosures and reports are protected. A consulting expert not expected to testify is reachable only through Rule 416(b) or on exceptional circumstances. The party seeking expert discovery generally pays the expert's reasonable fee, including deposition testimony time.

Privilege, clawback, and signatures

A party withholding material must expressly make the claim and describe what is withheld well enough for others to assess it. If privileged material is produced, notice triggers four duties on the recipient — return, sequester or destroy; stop using it; retrieve what was passed on; and, if desired, present it under seal — while the producing party preserves it.

Every discovery request, response and objection must be signed, which certifies after reasonable inquiry that a statement of fact is complete and correct, and that a request, response or objection is warranted by law, not interposed for an improper purpose, and neither unreasonable nor unduly burdensome or expensive. Unsigned papers need not be acted on and must be struck if not promptly signed, and an improper certification without substantial justification requires an appropriate sanction.

Frequently Asked Questions

Can I start discovery before making my disclosures?

No. Rule 402(a)(1) allows a party to proceed with discovery only after that party has completed its mandatory disclosures under Rule 401.

Can I ask for documents the other side already disclosed?

No. Rule 402(a)(3) bars requesting information or documents that were previously disclosed pursuant to mandatory disclosures under Rule 401.

Is there discovery in a civil protection order case?

Not by default. Rule 402(c)(2) provides that the discovery rules do not apply to civil protection order actions, and requires a motion for good cause stating with specificity the information sought, which may be heard at the 14 day hearing.

Can I contact the other side's expert?

No. Rule 402(c)(4)(C) bars a party from contacting a retained expert disclosed by another party without first obtaining permission of the party who retained the expert or the court.

Are draft expert reports discoverable?

No. Rule 402(c)(5) protects a draft disclosure or draft report prepared in anticipation of litigation by any witness disclosed under Rule 401.

What happens if privileged material is produced by accident?

Rule 402(c)(8)(B) requires the receiving party, once notified, to promptly return, sequester or destroy it and any copies, not use or disclose it until the claim is resolved, take reasonable steps to retrieve it if already disclosed, and allows presenting it to the court under seal.

Source & verification. Rule text and Rule History reproduced verbatim from the Idaho Rules of Family Law Procedure as published by the Idaho Supreme Court, current through amendments effective July 1, 2026. Promulgated by the Supreme Court of Idaho (Idaho Const. art. V, sec. 25). Last verified September 4, 2026. · Official text

Also known as: discoveryadditional discoveryscope of discoverywork productexpert discoveryclawbackprotection order discoveryproportionality