(a) Methods of discovery. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise under § 15-6-26(c), the frequency of use of these methods is not limited.
Rule 26.Discovery Pending Action
Part V: Discovery · Last amended 2021 · Last verified July 16, 2026
In one sentenceRule 15-6-26 lists the five discovery methods available in a South Dakota case, defines a broad but limited scope of discoverable material, protects trial-preparation materials and expert opinions from routine discovery, authorizes protective orders, and imposes an ongoing duty to correct incomplete or incorrect responses.
Full Text of Rule 15-6-26
(b) Scope of discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(1) In general. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
The frequency or extent of use of the discovery methods set forth in § 15-6-26(a) shall be limited by the court if it determines that:
(A)
(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or
(iii) discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy limitations on the party’s resources, and the importance of the issues at stake in the litigation.
The court may act upon its own initiative after reasonable notice or pursuant to a motion under § 15-6- 26(c).
(2) Insurance agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement.
(3) Trial preparation: materials. Subject to the provisions of subdivision (4) of this section, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (1) of this section and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including such other party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of subdivision 15-6-37(a)(4) apply to award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.
(4) Trial preparation: experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (1) of this rule and acquired or developed in anticipation of litigation or for trial may be obtained only as follows:
(A)
(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. A party may also take the testimony of each such expert witness by deposition upon oral examination.
(ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (4)(C) of this section, concerning fees and expenses as the court may deem appropriate.
(B) Trial-preparation for draft reports or disclosures. SDCL § 15-6-26(b)(3) protects drafts of any report prepared by any witness who is retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involves giving expert testimony, regardless of the form in which the draft is recorded.
(C) Trial preparation protection for communication between a party’s attorney and expert witnesses. SDCL § 15-6-26(b)(3) protects communications between the party’s attorney and any witness who is retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony, regardless of the form of the communications, except to the extent that the communications:
(i) relate to compensation for the expert’s study or testimony;
(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinion to be expressed; or
(iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.
(D) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in § 15-6-35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
(E) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (4)(A)(ii) and (4)(B) of this section; and (ii) with respect to discovery obtained under subdivision (4)(A)(ii) of this section the court may require, and with respect to discovery obtained under subdivision (4)(B) of this section the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
(5) Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
(c) Protective orders restricting discovery. Upon motion by a party or by the person from whom discovery is sought or has been taken, or other person who would be adversely affected, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending, on matters relating to a deposition, interrogatories, or other discovery, or alternatively, the court in the circuit where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(1) That the discovery not be had;
(2) That the discovery may be had only on specified terms and conditions, including a designation of the time and place;
(3) That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
(4) That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
(5) That discovery be conducted with no one present except persons designated by the court;
(6) That a deposition after being sealed be opened only by order of the court;
(7) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;
(8) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court;
(9) That depositions, interrogatories, admissions, other discovery, documents, and exhibits attached to motions, or portions of such documents, be sealed unless and until opened at the direction of the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of subdivision 15-6-37(a)(4) apply to the award of expenses incurred in relation to the motion.
(d) Sequence of discovery. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party’s discovery.
(e) Duty to supplement response. A party who has responded to a request for discovery with a response that was complete when made is under a duty to supplement or correct the response to include information thereafter acquired if ordered by the court or in the following circumstances:
(1) A party is under a duty to supplement at appropriate intervals the party’s response to a discovery request authorized under subdivision (a) if the party learns that in some material respect the response is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. With respect to testimony of an expert the duty extends to information contained in any expert report, discovery response concerning expert’s opinions and any deposition of the expert.
(2) A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.
(3) A duty to supplement responses may be imposed of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.
Note: (f) Superseded.
Plain-English Summary
Subdivision (a) names five discovery methods — oral or written depositions, interrogatories, production or inspection of documents and things, physical and mental examinations, and requests for admission — and lets parties use any of them as often as they like, unless the court limits the frequency under subdivision (c). Subdivision (b)(1) sets the scope: parties may obtain discovery on any non-privileged matter relevant to the subject matter of the action, whether it bears on their own claim or defense or anyone else’s, and it is no objection that the information sought would be inadmissible at trial if it appears reasonably calculated to lead to admissible evidence. The court must nonetheless limit discovery that is unreasonably cumulative or available more easily elsewhere, that a party already had ample opportunity to obtain, or that is unduly burdensome given the case’s needs, the amount in controversy, the party’s resources, and what is at stake.
Several categories of discovery get special treatment. The existence and contents of an insurance agreement that might cover a judgment are discoverable, though that disclosure alone does not make the information admissible at trial. Trial-preparation materials — documents and tangible things another party or its representative prepared in anticipation of litigation — can be reached only on a showing of substantial need and undue hardship in obtaining their equivalent elsewhere, and even then the court must guard against disclosing an attorney’s or representative’s mental impressions, conclusions, opinions, or legal theories. A party’s own prior statement, or a non-party’s prior statement about the case, can be obtained without that showing.
Expert discovery follows its own structure. A party may use interrogatories to learn who the other side expects to call as an expert witness, the subject of that testimony, and the substance of the expected opinions and their grounds, and may also depose any expert who is expected to testify at trial. Further expert discovery requires a court order. Draft expert reports and most communications between a party’s attorney and a testifying expert are protected, apart from communications about the expert’s compensation, facts or data the attorney provided that the expert considered, and assumptions the attorney provided that the expert relied on. A non-testifying expert’s facts and opinions can be discovered only as provided for physical and mental examinations under § 15-6-35(b) or on a showing of exceptional circumstances. A party asserting privilege or trial-preparation protection over withheld material must say so expressly and describe what was withheld well enough for others to assess the claim.
Subdivision (c) lets the court, for good cause and after the movant certifies a good-faith effort to resolve the dispute without court action, issue a protective order limiting or barring discovery on terms ranging from restricting who may attend to sealing materials until the court orders them opened. Subdivision (d) leaves the sequence of discovery methods up to the parties, and one party’s discovery does not delay another’s, absent a court order. Subdivision (e) requires a party to supplement a discovery response that was complete when made if the court orders it, or if the party later learns the response is materially incomplete or incorrect and that information has not otherwise reached the other parties — a duty that reaches expert reports, opinions, and deposition testimony, and that can also arise from a court order, an agreement between the parties, or a new request for supplementation.
Frequently Asked Questions
What methods can a party use to get discovery in a South Dakota civil case?
Rule 15-6-26(a) lists depositions upon oral or written examination, written interrogatories, production or inspection of documents and things, physical and mental examinations, and requests for admission.
Can I get information in discovery even if it would not be admissible at trial?
Yes. Rule 15-6-26(b)(1) says it is not a ground for objection that the information sought would be inadmissible at trial, as long as it appears reasonably calculated to lead to the discovery of admissible evidence.
Are the documents an attorney prepares for trial automatically off-limits to the other side?
Generally, yes, but not absolutely. Rule 15-6-26(b)(3) lets a party reach trial-preparation materials only on a showing of substantial need and undue hardship in obtaining their equivalent elsewhere, and even then the attorney’s mental impressions and legal theories stay protected.
Can I depose the other side’s expert witness before trial?
Yes. Rule 15-6-26(b)(4)(A) lets a party take the testimony of an expert witness the other side expects to call at trial by deposition, in addition to using interrogatories to learn the expert’s expected opinions.
What if my discovery response was correct when I made it but later turns out to be incomplete?
Rule 15-6-26(e) creates a duty to supplement or correct a response in that situation, once the party learns it is materially incomplete or incorrect and the correction has not otherwise reached the other parties.
Amendment History
(a), (d)Supreme Court Rule 76-3, § 2.
(b)SDC 1939 & Supp 1960, § 36.0505; SD RCP, Rule 26 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 2; SL 1993, ch 385 (Supreme Court Rule 93-2); SL 2006, ch 288 (Supreme Court Rule 06-14), eff. July 1, 2006; SL 2011, ch 244 (Supreme Court Rule 11-01), eff. July 1, 2011; SL 2021, ch 254 (Supreme Court Rule 21-02), effective February 23, 2021.
(c)SDC 1939 & Supp 1960, § 36.0516; SD RCP, Rule 30 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-30(b); Supreme Court Rule 76-3, § 2; SL 2001, ch 298 (Supreme Court Rule 01-06); 2006, ch 289 (Supreme Court Rule 06-15).
(e)Supreme Court Rule 76-3, § 2; 2006, ch 290 (Supreme Court Rule 06-16).
Source & verification. Rule text and History are
reproduced verbatim from the South Dakota Codified Laws, published by the
South Dakota Legislative Research Council. Last verified July 16, 2026.
· Official source
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