Group V: Depositions and Discovery · Last amended March 1, 2011 · Last verified July 15, 2026
In one sentenceRule 35 lets a court order a party whose physical or mental condition is truly at issue to undergo an examination by a suitably licensed examiner, and gives both sides a right to obtain the resulting written report.
(1)In general. 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.
(2)Motion and notice; Contents of the order. 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.
(1)Request by the party or person examined. The party who moved for the examination must, on request, deliver 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.
(2)Contents. 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.
(3)Request by the moving party. 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.
(4)Waiver of privilege. 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.
(5)Failure to deliver a report. The court on motion may order - on just terms - that a party deliver the report of an examination. If the report is not provided, the court may exclude the examiner's testimony at trial.
(6)Scope. This subdivision (b) applies also to an examination made by the parties' stipulation, unless the stipulation states otherwise. This subdivision does not preclude obtaining an examiner's report or deposing an examiner under other rules.
Explanatory Note
Rule 35 was amended, effective March 1, 1990; March 1, 1994; March 1, 2011. This rule is derived from Fed.R.Civ.P. 35. Rule 35 was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended. Rule 35 was amended, effective March 1, 1994, to track the 1991 federal amendment, by authorizing the court to require a physical or mental examination conducted by any person who is suitably licensed or certified such as a dentist, occupational therapist or clinical psychologist. The requirement that the examiner be "suitably licensed or certified" authorizes the court to assess the credentials of the examiner to assure that no person is subject to a court ordered examination by an examiner whose testimony would be of such limited value that it would be unjust to require the person to undergo the invasion of privacy associated with the examination. Rule 35 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Plain-English Summary
When a party's physical or mental condition is itself in dispute — including blood group — Rule 35(a) lets the court where the action is pending order that party to submit to an examination by a suitably licensed or certified examiner. The court can likewise order examination of a person in a party's custody or under its legal control. This is not something a party can demand as of right: the order can be made only on motion for good cause, with notice to all parties and to the person who will be examined, and the order itself must spell out the time, place, manner, conditions, and scope of the examination and who will perform it.
Rule 35(b) builds in reciprocity once the exam happens. The party who moved for the examination must, on request, hand over a copy of the examiner's report along with reports of any earlier examinations of the same condition — and that request can come from either the party who was ordered examined or the person examined. The report itself must be in writing and detail the examiner's findings, including diagnoses, conclusions, and test results. After receiving those reports, the moving party can in turn request, and is entitled to, similar reports of earlier or later examinations of the same condition from the other side, though those need not be produced if the party with custody or control of the examined person shows it could not obtain them.
Requesting and receiving the examiner's report, or deposing the examiner, comes at a cost: Rule 35(b)(4) treats that as a waiver of any privilege the examined party might otherwise claim over testimony about all examinations of the same condition, in that case or any other case involving the same controversy. If a report is not delivered as required, Rule 35(b)(5) lets the court order production on just terms, or exclude the examiner's testimony at trial if the report never comes. And under Rule 35(b)(6), these same reciprocal-report rules apply to an examination the parties arrange by their own stipulation, unless the stipulation says otherwise.
Frequently Asked Questions
Can a party be forced to undergo a physical or mental examination in a North Dakota lawsuit?
Yes, when that party's physical or mental condition is truly in controversy. Rule 35(a) requires a motion showing good cause, notice to all parties and the person to be examined, and a court order specifying the time, place, manner, conditions, scope of the exam, and who will perform it.
Who is qualified to perform a court-ordered examination under Rule 35?
The rule requires a suitably licensed or certified examiner. It does not limit the examination to medical doctors — any examiner whose license or certification fits the condition being examined can qualify, subject to the court's assessment.
If I am ordered to undergo an examination, can I see the resulting report?
Yes. Rule 35(b)(1) entitles either the party against whom the order was issued or the person examined to request a copy of the examiner's report, along with reports of any earlier examinations of the same condition.
What happens if I request the examiner's report — do I give up anything by asking?
Yes. Rule 35(b)(4) treats requesting and obtaining the report, or deposing the examiner, as a waiver of any privilege over testimony about all examinations of the same condition, in that action or any other action involving the same controversy.
What can the court do if the examiner's report is never delivered?
Rule 35(b)(5) lets the court, on motion, order that the report be delivered on just terms. If it still is not provided, the court may exclude the examiner's testimony at trial.
Source & verification. Rule text and the Explanatory Note are
reproduced verbatim from the North Dakota Rules of Civil Procedure, adopted by the
Supreme Court of North Dakota. Last verified July 15, 2026.
· Official source
Also known as:nd physical mental examination ruleindependent medical exam north dakotarule 35 waiver privilege north dakotaexaminer report request nd