Rule 1-026.General provisions governing discovery

Scope of Discovery. The amendments consolidate the prior language in Rule 1-026(B)(1) to express the well-established standard for liberal pretrial discovery. E.g., Marchiondo v. Brown, 98 N.M. 394, 649 P.2d 462 (1982). The parties may obtain discovery of any information not privileged which is relevant to the subject matter involved in the pending litigation. The amendment retains the provision that the information sought need not be admissible at trial if the information appears to be reasonably calculated to lead to the discovery of admissible evidence. The rule further explains that parties responding to discovery requests seeking such information must provide responsive information then known to the party and may not delay discovery of such information simply because discovery is not complete or future pretrial deadlines may exist.

Witnesses and Exhibits. This paragraph explicitly provides for discovery related to witnesses, documents, electronically stored information, and tangible things. One of the principal purposes of these provisions is to facilitate early discovery of necessary pretrial information to focus later discovery. Early identification of potential witnesses and exhibits should expedite the litigation process.

Insurance information. Although Rule 1-026(B)(4) does not include an insurance application as part of an insurance agreement, such applications may be discoverable when reasonably calculated to lead to the discovery of admissible evidence. The revisions to Rule 1-026(B)(4) are not intended to change existing law governing the admissibility of information concerning insurance agreements. The Rules of Evidence continue to control the admissibility of insurance information.

Expert Discovery. Rule 1-026(B)(4) concerns discovery of experts. The previous rule required a court order for taking a deposition of an expert, a procedure not uniformly followed. The rule now provides for requests for production and interrogatories as well as depositions of experts without court order.

Privilege Issues. These revisions consist mostly of stylistic changes. It is desirable that a party comply with the provisions of Rule 1-026(B)(7)(a) by producing a privilege log of any information being withheld from discovery on the grounds of privilege. The provisions in Rule 1-026(B)(7)(b) are new. They are modeled after amendments to the Federal Rules of Civil Procedure adopted with provisions for the discovery of electronically-stored information as explained in more detail below.

Protective Orders. The amendments consist essentially of stylistic changes with one notable exception. The rule previously provided that a party or other person could seek a protective order from the court in which the action is pending or, alternatively, on matters relating to a deposition, from a court in the district where the deposition is to be taken. The provision applicable “to the district where the deposition is to be taken” is a vestige from the adoption of portions of the federal rule, which envisions discovery outside the federal district of the pending action. The federal rule has a nationwide application. New Mexico has a much smaller geographic area, and consequently, the committee felt that the burdens imposed by requiring parties or non-parties to seek a protective order in the district court where the action is filed did not outweigh the judicial economy and consistency of having that particular court decide the issue.

Supplementation. The amendments to Paragraph E concern a party’s duty to supplement and amend discovery responses. The rule does not require supplementation or amendment if the additional or corrective information has otherwise been made known to the parties during the discovery process or in writing. The amendment does not otherwise significantly change the substantive requirements of the existing rule; it is intended to restate those requirements more concisely.

Discovery Conferences. The revisions streamline the procedures applicable to discovery conferences and eliminate provisions that litigants were not typically following in routine practice. The rule provides parties the opportunity to have the court enter scheduling deadlines related to expert witnesses.

Discovery of Electronically Stored Information. In September, 2005, the Committee on Rules of Practice and Procedure proposed amendments to the Federal Rules of Civil Procedure. The committee found that discovery of electronically stored information “raises markedly different issues from conventional discovery of paper records” and that existing discovery rules “provide inadequate guidance to litigants, judges, and lawyers in determining discovery rights and obligations in particular cases.” September 2005 Report of the Committee on Rules of Practice and Procedure. The advisory committee submitted proposed amendments to Federal Rules 16, 26, 33, 34, 37, 45 and Form 35 to address these problems. The proposals were adopted and went into effect in the federal courts in December, 2006.

The New Mexico Rules of Civil Procedure for the District Courts Committee reviewed these new federal rules and the advisory committee’s accompanying commentary. With three substantive changes and additional minor editing changes, the committee recommended that New Mexico amend Rules 1-016, 1-026, 1-033, 1-034, 1-037 and 1-045 of the New Mexico Rules of Civil Procedure for the District Courts to incorporate the new federal rules concerning discovery of electronically stored information.

One recommended change occurs in Rule 1-026(B)(7)(b) NMRA, which deals with the assertion of privilege or other protection for information already produced by a party. Both Federal Rule 26(b)(5)(B) and Rule 1-026(B)(7)(b) provide that the party who is notified that the party has received information subject to the claim of privilege or protection must sequester it and not use it until the claim is resolved. Federal Rule 26(b)(5)(B) provides that the party in possession of the disputed information “may promptly present the information to the court under seal for a determination of the claim.” Because New Mexico law provides that documents are sealed only after a motion to seal has been made and granted, see, e.g., Thomas v. Thomas, 1999-NMCA-135, 128 N.M. 177, 991 P.2d 7 (Ct. App. 1999) (noting that a party sought a protective order to seal the district court record of the proceedings); LR2-111 NMRA [withdrawn] (“... a court may seal a file or other record upon a party’s written motion or the court’s own motion, and showing of good cause.”), New Mexico Rule 1-026(B)(7)(b) provides instead: “By motion, a receiving party may promptly present the information to the court for in camera review and determination of the claim.” The committee does not intend that the adoption of Rule 1-026(B)(7) will otherwise affect the burdens of production and persuasion that apply when claims of privilege are made. See Rule 1-026(B)(7)(a)); see also Pina v. Espinoza, 2001-NMCA-055, 130 N.M. 661, 29 P.3d 1062.

The second change is the omission from the amendments to New Mexico Rule 1-037 of that portion of the 2006 amendment that added Rule 37(f) to the Federal Rule. Federal Rule 37(f) provides:

(f) Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

The committee is of the view that nothing in the nature of discovery of electronically stored information requires curtailment of the existing discretion of the district court to determine an appropriate sanction for violation of discovery rules.

The third change is the omission of a provision in Federal Rule 26(b)(2)(B), which provides:

(B) Specific Limitations 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 Rule 26(b)(2)(C). The court may specify conditions for the discovery.

The committee is of the view that the discovery of electronically stored information should be subject to the same provisions in these rules for motions to compel discovery and motions for protective orders that currently govern the discovery of non-electronic information.

[As amended by Supreme Court Order No. 09-8300-007, effective May 15, 2009.]