Rule 35.Physical and mental examination of persons

Rule 35 is the one discovery tool in this batch that never runs on its own; it needs a judge’s order every time. Section A lets a court require a party — or someone that party has custody of or legal control over, such as a minor child — to sit for a physical or mental examination, but only when that person’s condition, including blood group, is in controversy in the case and only on a motion that shows good cause. The order has to name the time, place, manner, conditions, and scope of the exam, and who will conduct it, and everyone — the person being examined and every party — gets notice before it happens.

Section B covers what comes after the exam. If either the party against whom the examination order was made or the person examined requests it, the party who set up the exam must turn over a detailed written report: the findings, test results, diagnoses, and conclusions, along with reports from any earlier exams of the same condition. Handing over that report works two ways — once the requesting party gets it, that party owes the other side a copy of any comparable report it has, from an exam before or after this one, unless it can show it can’t obtain one. A court can order a report handed over on fair terms, and if the examiner won’t write one, the court can keep that examiner from testifying at trial. Asking for the report, or deposing the examiner, comes at a cost: it waives any privilege the examined person might otherwise claim over what every other examiner of that same condition has to say, in this case or a related one. The whole section applies just as much to exams the parties arrange between themselves by agreement, unless they agree otherwise, and it doesn’t stop a party from getting a report or deposing the examiner through some other discovery rule.