Rule 416.Physical, Mental and Vocational Evaluations of Persons

Rule 416 governs examinations of a person whose condition is in controversy.

When one may be ordered

Where the mental, physical, or vocational condition of a party or any other person is in controversy, the parties by stipulation or the court by order may require that person to submit to an evaluation by a designated expert, or require a party to produce a person in its custody or legal control.

An order may be made only on motion for good cause and on notice to all parties and the person to be evaluated — with one carve-out: notice to the person is not required where that person is a minor child of one or both of the parties. The order must specify the time, place, manner, conditions and scope, including any tests or procedures to be performed, and who will perform it.

A representative may attend

On reasonable notice, the person being evaluated has the right to have a representative of his or her choice present — unless the presence of that representative may adversely affect the outcome. Idaho states this as a right subject to an exception, rather than as something to be requested.

The report exchange, and what it costs

On request, the party who moved for the examination must deliver the examiner's report together with like reports of all earlier examinations of the same condition. The request may come from the party against whom the order issued or from the person examined. The report must be in writing and set out the findings in detail, including diagnoses, conclusions and test results.

After delivering, the moving party may then request and is entitled to receive all other writings or recordings created by the examiner or the party — including the originals of forms and test score sheets — and like reports of all earlier or later examinations of the same condition. That obligation is excused for a party who shows it could not obtain them.

The waiver

Section (b)(4) is the provision to weigh before asking. 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.

Asking for the report opens the subject. If a report is not provided when ordered, the court may exclude the evaluator's testimony at trial. And section (b) applies equally to an examination made by the parties' agreement, unless the agreement says otherwise.