Rule 26.General Provisions Governing Discovery

If electronically stored information cannot be retrieved or translated into reasonably usable form without “undue burden or expense,” the producing party must identify that fact to the requesting party. If an application is made to produce the information under Rule 26(g), the party resisting discovery bears the initial burden to show the court that the information is not, in fact, “reasonably accessible because of undue burden or expense.” The requesting party must then show “good cause” why the information should be produced notwithstanding the burden and expense. The court then considers whether the showings required by the rule have been made and it has broad discretion and remedial powers in addressing the issue. If the information can be reasonably produced, even if there is some burden or cost that is not “undue,” production should simply be ordered as routine discovery. On the other hand, if the producing party meets its burden and the requesting party cannot show good cause for the production, no production is to be ordered. If the showings have been made, the court may still consider whether production should be required under the circumstances. If production is required, the court should consider, as Rule 26(c) contemplates, the extent of the production and what conditions the court may order to eliminate or mitigate “undue burden or expense.” Assuming some “undue burden or expense” remains, however, the rule, unlike its federal counterpart, mandates that the requesting party pay the reasonable expense of that production.

Advisory Committee Note — December 2007

The adoption of M.R. Civ. P. 26(b)(5)[A] is intended to provide a procedure for identifying information or material withheld under a claim of privilege or work product. The provision is a verbatim adoption of its federal counterpart, Fed. R. Civ. P. 26(b)(5)(A).

Present practice frequently is for the withholding party simply to invoke the privilege in an objection to the discovery, leaving the requesting party no basis on which to evaluate whether the privilege is properly invoked. In response, the requesting party occasionally demands a “privilege log” so detailed that the protection of afforded by the privilege is lost. In either case, the court has no basis on which to resolve the dispute efficiently. The purpose of the rule is not to create a burdensome duty to provide a detailed list of documents or information withheld. The intent of the rule is to require a general description of what is withheld so that the requesting party can decide whether to contest the claim and the court has some basis on which to resolve the dispute. Obviously, the court in resolving the issue may require more detail or an in camera inspection, but the rule should obviate some disputes entirely and provide a basis for resolving most disputes if they require judicial intervention.

Advisory Notes

Rule 26(g)(1) & (2) are amended to state the court’s authority to utilize video and telephone conferencing options.

Advisory Note — January 1, 2003

The purpose of the amendment to M.R. Civ. P. 26(b)(4)(A)(i) is to exempt treating physicians from providing information on qualifications, publications and compensation. In practice such information has proven difficult to obtain from treating physicians with busy practices and varying billing rates, and the need for such information is less for treating physicians than for experts retained for case- related purposes.

Advisory Committee’s Notes — May 1, 1999

There are three amendments to Rule 26. In Rule 26(a), the former last sentence of the subdivision, specifying that the frequency of use of discovery methods was not limited, has been deleted. Given the specificity of the other discovery rules, the provision became superfluous.

New language is added to Rule 26(b)(4)(A)(i) to expand the information required to be produced in the designation of expert witnesses. Under the amendment, a party is required to identify information and exhibits used by the expert to form or support opinions, and to set forth the qualifications, compensation, and publications of the expert. The intent of the amendment is to catalogue information that is now routinely requested by opposing parties and routinely allowed by the court. Although the rule still states that a party may obtain this information “through interrogatories,” as a practical matter, the automatic disclosure provisions of the scheduling order will require production of this information as a matter of course. It is the intent of the rule that a full, good faith disclosure be made to avoid issues concerning expert testimony arising for the first time at trial.

Advisory Committee’s Notes — May 1, 1999 (Second)

Subdivision (g) has been abrogated and replaced. Although a good faith discovery conference is required to resolve disputes by agreement, the rule prohibits written discovery motions unless otherwise ordered by the court. Discovery disputes will now be resolved by telephone or personal conference or hearing of a justice or judge of the court in which the action is pending. The purpose of the amendment is to provide a swift, inexpensive means for judicial intervention to resolve discovery disputes and to keep the case moving forward according to the original deadlines entered by the scheduling order. Most discovery issues can be quickly and efficiently resolved by a judicial officer without the necessity of written motions and memoranda.

In order to initiate the new process, the party requesting court action simply contacts the appropriate clerk by letter or, in exigent circumstances, by telephone or in person. The request itself constitutes a representation to the court, subject to the sanction of Rule 11, that the issue remains unresolved after a discovery conference had been conducted in good faith. The clerk then sets up a time for the hearing or conference with the court and informs the moving party, who is responsible for notifying all other parties and for initiating any telephone conference.

The hearing or conference is intended to be as informal as the process of requesting it. It is the moving party’s obligation to provide an unargumentative letter to the court describing the dispute succinctly and enclosing the discovery requests and responses at issue. No written argument is to be submitted and no other papers are to be filed with the clerk without prior leave of the court. The letter and the materials are intended simply as a guide to the court in the resolution of the dispute.

The rule explicitly gives the justice or judge conducting the hearing the authority to make “such orders at the hearing as are necessary to resolve the dispute.” The orders are to be reduced to writing and constitute “orders” for the purposes of sanctions under Rule 37. If it appears that the nature of the dispute is such that the court would find written submissions helpful, the court may order the parties to file written motions and supporting memoranda on some or all of the issues. The process is intended to be swift, practical, inexpensive and flexible.

Advisory Committee’s Notes — February 15, 1996

Rule 26(f) is amended to make clear that miniaturized deposition transcripts may be served and filed as provided in the simultaneous amendment of Rule 5(f).

Advisory Committee’s Notes

Rule 26(g) is added. The provision is adapted from Local Rule 16(e) of the United States District Court for the District of Maine. Its purpose is to reduce the number of contested discovery motions by requiring the moving party to make a good faith effort to confer with opposing counsel prior to filing a motion and to certify that the conference has occurred or that it was not held for stated reasons.

Advisory Committee’s Notes

Rule 26(f) is added to eliminate the requirement of filing discovery materials with the Court unless otherwise ordered, or unless the material is to be used in the proceeding. See also simultaneous amendments of M.R. Civ. P. 5(d) and 30(f)(1) and additions of Form 17. The amendment is applicable in the District Court by virtue of its incorporation in M.D.C.Civ.R. 26.

The rule is taken from Rule 16(d), (g) of the Rules of the United States District Court for the District of Maine and from F.R.Civ.P. 5(d), upon which the local rule is based. The new rule is deemed necessary because currently the filing of large volumes of interrogatory requests and responses and deposition transcripts poses a significant problem for Superior Court clerk’s offices. Further, including discovery in court files makes those files much more difficult to review. The party initiating the discovery should file Official Form 17, added by simultaneous amendment, to provide information from which the clerk may docket the service to provide entries that stop the running of the two-year period of Rule 41(b).

Under paragraph (1) of the new rule, discovery materials are to be retained by the party serving notice of a deposition or otherwise initiating discovery for a period of two years after final judgment. Note that, in the event of an appeal, the final judgment referred to is that entered after disposition of the appeal. The burden remains upon the party who would use a deposition as evidence under Rule 32(a), or use other discovery materials as part of the record, to obtain the original or appropriate copies from the party having custody for appropriate filing. The duty to preserve the integrity of the materials is a matter of professional responsibility on the part of the lawyer having custody.

Paragraph (2), taken from D. Me. D.R. 16(g), provides the procedure for filing when discovery material is to be used at trial and makes plain that, to assure that the full context is available, the complete deposition or other matter must be filed.

Advisory Committee’s Note — February 1, 1983

Rule 26(a) is amended to make the rule consistent with the recent revision of Rule 33 whereby the limitation on the number of written interrogatories was removed.

Advisory Committee’s Notes — October 1, 1970

General Discussion of Discovery Amendments

The Federal Rules of Civil Procedure relating to discovery have been extensively amended, effective on July 1, 1970. See 48 F.R.D. 459-80 (1970). Those amendments which affect F.R. 26 and 29-37 and certain related rules such as Rules 5(a), 45(d) (1), and 69 and Form 24 have been under consideration by the federal Advisory Committee on Civil Rules for several years. In November, 1967, that Committee presented to Bench and Bar a Preliminary Draft of the proposed Amendments for their comments.

This comprehensive review of the federal discovery rules, the first undertaken since their promulgation in 1938, has resulted in improvements which on their merits commend themselves for adoption in State practice. In addition, it is desirable for the convenience of Maine practicing lawyers to maintain substantial uniformity between the Federal Rules of Procedure and the Maine Rules of Civil Procedure. Substantial uniformity was a guiding principle in the original promulgation in 1959 of the Maine Rules. Also, a substantial body of amendments were made to the Maine Rules effective November 1, 1966, in order to conform to 1963 and 1966 Amendments to the Federal Rules. For both of these reasons, namely, the inherent merit of the amendments to the federal discovery rules and the desirability of maintaining uniformity between the State and federal practice, the Advisory Committee recommends amendment of the Maine discovery rules. At the same time, the Committee recommends that a limited number of differences be maintained for the same reasons which were deemed sufficient in 1959. First, whereas F.R. 30(b) provides for merely “reasonable notice” of the taking of a deposition, Maine Rule 30 requires a minimum of seven days’ notice of a deposition unless the court otherwise orders. Secondly, whereas F.R. 33 puts no limitation upon the number or frequency of interrogatories, Maine Rule 33 permits, except by court order, only one set of interrogatories, numbering not in excess of thirty. The principal changes in the discovery rules have been explained in an introductory statement by the federal Advisory Committee on Civil Rules in the following terms:

“The discovery rules, as adopted in 1938, were a striking and imaginative departure from tradition. It was expected from the outset that they would be important, but experience has shown them to play an even larger role than was initially foreseen. Although the discovery rules have been amended since 1938, the changes were relatively few and narrowly focused, made in order to remedy specific defects. The amendments now proposed reflect the first comprehensive review of the discovery rules undertaken since 1938. These amendments make substantial changes in the discovery rules. Those summarized here are among important changes.

“Scope of Discovery. New provisions are made and existing provisions changed affecting the scope of discovery: (1) The contents of insurance policies are made discoverable (Rule 26(b) (2)). (2) A showing of good cause is no longer required for discovery of documents and things and entry upon land (Rule 34). However, a showing of need is required for discovery of ‘trial preparation materials other than a party’s discovery of his own statement and a witness discovery of his own statement; and protection is afforded against disclosure in such documents of mental impression, conclusions, opinions, or legal theories concerning the litigation. (Rule 26(b) (3)). (3) Provision is made for discovery with respect to experts retained for trial preparation, and particularly those experts who will be called to testify at trial (Rule 26(b) (4)). (4) It is provided that interrogatories and requests for admission are not objectionable simply because they relate to matters of opinion or contention, subject of course to the supervisory power of the court (Rules 33(b), 36(a)). (5) Medical examination is made available as to certain nonparties. (Rule 35(a)).

“Mechanics of Discovery. A variety of changes are made in the mechanics of the discovery process, affecting the sequence and timing of discovery, the respective obligations of the parties with respect to requests, responses, and motions for court orders, and the related powers of the court to enforce discovery requests and to protect against their abusive use. A new provision eliminates the automatic grant of priority in discovery to one side (Rule 26(d)). Another provides that a party is not under a duty to supplement his responses to requests for discovery, except as specified (Rule 26(e)). “Other changes in the mechanics of discovery are designed to encourage extrajudicial discovery with a minimum of court intervention. Among these are the following: (1) The requirement that a plaintiff seek leave of court for early discovery requests is eliminated or reduced, and motions for a court order under Rule 34 are made unnecessary. Motions under Rule 35 are continued. (2) Answers and objections are to be served together and an enlargement of the time for response is provided. (3) The party seeking discovery, rather than the objecting party, is made responsible for invoking judicial determination of discovery disputes not resolved by the parties. (4) Judicial sanctions are tightened with respect to unjustified insistence upon or objection to discovery. These changes bring Rules 33, 34, and 36 substantially into line with the procedure now provided for depositions.

“Failure to amend Rule 35 in the same way is based upon two considerations. First, the Columbia Survey (described below)** finds that only about 5 percent of medical examinations require court motions, of which about half result in court orders. Second and of greater importance, the interest of the person to be examined in the privacy of his person was recently stressed by the Supreme Court in Schlagenhauf v. Holder, 379 U.S. 104 (1964). The court emphasized the trial judge=s responsibility to assure that the medical examination was justified, particularly as to its scope.

“Rearrangement of Rules. A limited rearrangement of the discovery rules has been made, whereby certain provisions are transferred from one rule to another. The reasons for this rearrangement are discussed below in a separate section of this statement, and the details are set out in a table at the end of this statement.

“Optional Procedures. In two instances, new optional procedures have been made available. A new procedure is provided to a party seeking to take the deposition of a corporation or other organization (Rule 30(b) (6)). A party on whom interrogatories have been served requesting information derivable from his business records may under specified circumstances produce the records rather than give answers (Rule 33(c)). * [Field. McKusick & Wroth comment: “See Field, McKusick & Wroth § 26.1, n. 2; and Glaser, Pre-Trial Discovery and the Adversary System (1968).” Field, McKusick & Wroth, Maine Civil Practice at 204 (Supp. 1981).] “Other Changes. This summary of changes is by no means exhaustive. Various changes have been made in order to improve, tighten, or clarify particular provisions, to resolve conflicts in the case law, and to improve language. All changes, whether mentioned here or not, are discussed in the appropriate note for each rule @ (48 F.R.D. 487-89 (1970)).

In general, the original discovery rules, both federal and Maine, were structured in terms of individual discovery devices. For example, Rules 26 and 28 through 32 dealt with taking depositions and Rules 33 to 36 dealt with written interrogatories, production of documents and things, physical or mental examination, and requests for admission. The amendment of the federal discovery rules makes Rule 26 the repository of general provisions applicable to all or most of the discovery devices. It includes new provisions in regard to the scope, timing and regulation of discovery generally. Other provisions in the existing Rule 26 relating only to depositions are transferred to Rules 30, 31 and 32. This rearrangement of the discovery rules produces a more coherent and intelligent pattern.

Table Showing Rearrangement of Rules

Existing Rule No. New Rule No.

26(a) 30(a), 31(a) 26(c) 30(c) 26(d) 32(a) 26(e) 32(b) 26(f) 32(c) 30(a) 30(b) 30(b) 26(c) 32 32(d)

The foregoing over-all explanation of the federal discovery amendments serves a similar role for the Maine amendments. [A] separate Advisory Committee’s Note accompanying each of the amended discovery rules points out the particular changes made thereby in Maine practice and the differences between the federal and the State amendments. For a study in depth of the background of the federal and Maine discovery amendments, resort may be had to the extensive federal Advisory Committee’s Notes. See 48 F.R.D. 491-545. Amendments to Rule 26

In carrying out the limited rearrangement of the discovery rules in order to establish Rule 26 as a rule governing in general all six discovery devices, certain subdivisions of existing Rule 26 are moved elsewhere: Existing Rule 26(a) dealing with when depositions may be taken, is moved to Rule 30(a) as to oral depositions and to Rule 31(a) as to depositions upon written questions. Existing Rule 26(c), relating to examination and cross-examination of deponents, is moved to Rule 30 (c). Existing Rules 26(d), (e), and (f), relating to the use of depositions, objections to admissibility, and the effect of taking and using depositions, become Rules 32(a), (b) and (c), where they are combined with the existing subject matter of Rule 32, which becomes subdivision (d), relating to the effect of errors and irregularities in depositions. To complete the rearrangement affecting Rule 26, existing Rule 30(b) providing for orders for the protection of parties and witnesses is moved to become new Rule 26(c).

Rule 26(a) merely lists the six methods of discovery and states that the frequency of use of such methods is unlimited, except as the use of written interrogatories is limited by Rule 33(a) to one set of not more than thirty interrogatories and also except as the court may otherwise direct in a protective order.

Rule 26(b) prescribes the permissible scope of discovery. The general statement of scope contained in Rule 26(b) (1) is in substance unchanged from existing Rule 26(b), broadened to apply to all discovery methods. Rule 26(b) (2) makes insurance coverage discoverable, but it is expressly declared that disclosure does not make the facts concerning insurance coverage admissible in evidence at trial. As the federal Advisory Committee’s Note points out, “Disclosure of insurance coverage will enable counsel for both sides to make the same realistic appraisal of the case, so that settlement and litigation strategy are based on knowledge and not speculation.” 48 F.R.D.487, 499. In light of the realities of personal injury and property damage litigation today, discovery of insurance coverage is as necessary to “the just, speedy, and inexpensive determination of every action” called for by Rule 1 as is discovery of the facts pertinent to liability and damages.

Rule 26(b) (3) declares the terms upon which trial preparation materials may be discovered. Maine Rule 26(b) as adopted in 1959 anticipated the express provision now contained in the new F.R.26(b) (3), requiring a special showing for the discovery of documents and tangible things prepared in anticipation of litigation or for trial by the adverse party or his representative and giving absolute protection of disclosure of an attorney’s mental impressions, conclusions, opinions or legal theories. The first paragraph of new Rule 26(b) (3) thus works no substantial change in Maine practice. Rule 26(b) (3) does, however, in its second paragraph eliminate the requirement of any showing to permit a party to obtain a copy of a statement concerning the action or its subject matter previously made by him. That paragraph will thus resolve a question that has previously been undecided in Maine. See Field, McKusick and Wroth § 26.16. A further change permits a non- party witness to obtain a copy of his own statement; he needs to make no special showing.

Rule 26(b) (4) spells out in detail the limited circumstances in which facts known and opinions held by experts and acquired or developed in anticipation of litigation or for trial may be discovered. The last sentence of present Maine Rule 26(b) extends a complete immunity from discovery to “the conclusions of an expert,” except as provided in Rule 35(b) for reports of physical and mental examinations. Although the existing immunity is absolute, the scope of the protection is limited to “conclusions” and to “experts” who are not parties and who are specially employed in connection with the litigation. See Field, McKusick and Wroth § 26.17. The new rule reflects the view of much recent authority to the effect that there should not be any absolute immunity even of limited scope, that the identity and content of proposed testimony of an expert witness to be called at trial should be freely available, and that facts known or opinions held by other experts retained in anticipation of litigation, but not expected to be called at trial, should be available only under showing of exceptional circumstances. It is believed that the new rule in regard to experts is desirable in spelling out in greater detail the extent of discoverability of facts known and opinions held by experts and imposing allocation of fees and expenses.

Rule 26(c) is substantially identical to existing Rule 30(b). Items (9) and (10) are added to F.R. 26(c) to preserve two specific types of protective orders for which the Maine Rule from the beginning has expressly provided. The last sentence calling upon the court to exercise with liberality its power to issue protective orders is also preserved from the original Maine Rule 30(b) and does not appear in the corresponding Federal Rule.

Rule 26(d) is concerned with the sequence in which parties may proceed with discovery and with related problems of timing. Although problems in this regard have been encountered in federal practice, see federal Advisory Committee’s Note to F.R. 26(d), 48 F.R.D. 506-07, it is not believed that any change in Maine practice will be produced by new Rule 26(d).

Rule 26(e) fills a gap existing in the present rules by setting forth those limited circumstances where a party who has responded to a request for discovery is under a duty to supplement his responses. The new F.R. 26(e) is substantially similar to Local Rule 15(c) of the United States District Court for Maine, and does not differ substantially from the duty which Maine lawyers feel they owe their fellow attorneys as a matter of fair dealing. See Field, McKusick and Wroth § 26.18a.

Explanation of Amendment — November 1, 1966

This amendment was taken from a 1963 amendment to F.R. 26(e). It simply incorporated a reference to Rule 28(b), which was amended at the same time in order to provide a greater degree of flexibility in the taking of depositions in foreign countries.

Reporter’s Notes — December 1, 1959

This rule is substantially the same as Federal Rule 26, but with the addition of the last sentence of Rule 26(b). Under Rule 26(a) the deposition of any witness, including a party, may be taken on either oral or written interrogatories within or outside the state. Leave of court is not required except when a plaintiff seeks a deposition within 20 days after service upon the defendant, for at such time the defendant might not have retained counsel. This freedom to take the deposition of any person should be read in the light of Rule 26(d), which limits the use of depositions at trial. Under R.S.1954, Chap. 117, Sec. 5, 21 (repealed in 1959), the deposition of an adverse party may be taken by commission only when he is outside the state. The rule contains no such limitation. The effect of the rule is to make depositions broadly usable for discovery purposes even though the witness will presumably be available for trial.

Rule 26(b) makes it clear that the scope of examination on deposition is not limited by the standards of admissibility of evidence at trial. Inquiry may be made as to any matter, not privileged, which is relevant to the subject matter of the action. Depositions may be taken to obtain disclosure of an opponent’s case and to obtain leads to aid in the development of one’s own ease. That these leads are in the form of inadmissible hearsay is no ground for objection at the deposition stage, although the testimony would be excluded on objection if the deposition were offered at trial. Thus a party can learn the names and addresses of witnesses unknown to him and what their story will be. He can find out about the existence and location of relevant books, documents and the like, so that he can proceed to obtain discovery of them. The sweep of disclosure is, however, limited by the last sentence of Rule 26(b), which is taken from the New Jersey rule. It forbids discovery of a written statement taken by or for an attorney in anticipation of litigation or in preparation for trial unless the court otherwise orders to prevent injustice or undue hardship. This reflects the holding of the Supreme Court of the United States in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), but is broader than that holding.

Rule 26(d) covers the use of depositions at trial, where the ordinary rules of admissibility govern. The deposition of an adverse party may be used for any purpose, so far as the rules of evidence permit. It may be used as substantive evidence even though the party is present and has testified. The deposition of a witness other than an adverse party may be used if the witness is unavailable for any of the reasons specified in the rule. The test of unavailability is somewhat broader than in the Maine statute. Naturally the deposition of any witness may be used to contradict or impeach his testimony, just as any other inconsistent statement can be.

Rule 26(e) allows objection to deposition evidence to be made for the first time at trial except objections based upon grounds which might have been obviated if presented at the taking of the deposition. This is similar to R.S.1954, Chap. 117, Sec. 18 (repealed in 1959).