Rule 26.General provisions governing discovery

Reporter’s Notes—2025 Amendment: Rule 26(f) is amended to clarify the interrelation of Rule 26(f) and Rules 16.2 and 16.3. The amendment states that the plan and schedule for discovery to be established following the discovery conference will be a scheduling order under Rule 16.2, and that, if Rule 16.3 requires mediation, the discovery conference order must include a date for completion of mediation. The amendment deletes the provision for altering or amending a discovery conference order. As a scheduling order, the discovery conference order may be modified on motion and a showing of good cause or as necessary to prevent manifest injustice under Rule 16.2(c).

Reporter’s Notes—2020 Amendment: Rule 26(c)(2) is amended by the addition of the phrase, “for the discovery or disclosure,” for uniformity with the language of Federal Rule of Civil Procedure 26(c)(1)(B). Although, unlike the Federal Rule, disclosure is not mandatory under V.R.C.P. 26, the term is included because a scheduling order could require a disclosure.

Reporter’s Notes—2019 Amendment: Rule 26(b)(5)(A)(i) is amended to adapt the language of F.R.C.P. 26(a)(2)(A) for the provision of the Vermont Rule identifying expert witnesses whose identity must be disclosed in response to an interrogatory. The amended rule applies to “each person” who may be used at trial to present expert testimony under Vermont Rules of Evidence 702, 703, and 705. To remove uncertainty regarding whether this requirement applies to witnesses whose testimony falls within those Evidence Rules but who were not specially retained to develop their opinions, the present amendment makes clear that Rule 26(b)(5) applies “whether or not the witness may also testify from personal knowledge as to any fact in issue in the case.” The amended rule changes prior practice as exemplified by Hutchins v. Fletcher Allen Health Care, Inc., 172 Vt. 580, 582, 776 A.2d 376, 379 (2001) (mem.), where the Court interpreted an earlier version of V.R.C.P. 26(b)(5)(A)(i) to allow defendant’s expert witnesses who, as treating physicians, were also fact witnesses to be treated as ordinary witnesses not subject to those disclosure requirements. The continued effect of that decision is weakened by Stella v. Spaulding, 2013 VT 8, ¶ 17, 193 Vt. 226, 67 A.3d 247 (without objection, expert disclosure requirements applied to plaintiff’s nonparty care provider, despite dissent’s suggestion that Hutchins should apply. This change is intended to further the purpose set forth in Rule 1 of the Vermont Rules of Civil Procedure “to secure the just, speedy, and inexpensive determination of every action.” Like other provisions of the Vermont Rules governing discovery of experts, the present amendment ensures fair notice to litigants of an expert’s testimony, enabling litigants to decide whether it is necessary to depose the expert and to otherwise prepare for the trial on scientific, technical, or other specialized issues. See, e.g. Stella, 2013 VT 8; Greene v. Bell, 171 Vt. 280, 283-84, 762 A.2d 865, 869 (2000). The goal of fairness and prevention of surprise requires disclosure of all expert opinion. The term “expert” as used in Rule 26(b)(5)(A)(i) and throughout Rule 26(b)(5) refers to any witness who, as provided in Rule 702, is “qualified as an expert by knowledge, skill, experience, training, or education” and whose opinion or other testimony based on “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Rule 702 further provides that the testimony must be “based upon sufficient facts or data” and “the product of reliable principles and methods,” and those principles and methods must be “applied . . . reliably to the facts of the case.” Thanks to the liberality of Rule 702, witnesses with expertise in a wide variety of fields are now commonly used in civil and other litigation. Extension of the disclosure requirement to witnesses with expert qualifications who also have personal knowledge of factual matters in issue reflects the practical reality that such “fact” witnesses will invariably be called at trial, and their expertise will necessarily inform their testimony. Thus, their expertise and the bases of their opinions should be routinely disclosed. When the Vermont Rules of Civil Procedure were adopted in 1971, disclosure, as under the Federal Rules, was limited to witnesses whose opinions were formed “in anticipation of litigation or for trial.” As the original Reporter’s Notes to V.R.C.P. 26 stated, “An expert whose knowledge or opinions are relevant because of his participation in the events giving rise to suit should be treated for discovery purposes as an ordinary witness.” This language was the basis of the decision in Hutchins, 172 Vt. at 582, 776 A.2d at 379. The requirement that all opinion testimony under Rules of Evidence 702, 703, or 705 must be disclosed, regardless of whether it was formed in anticipation of litigation or trial was added to the Federal Rule in 1993. However, V.R.C.P. 26(b)(5) was amended only to delete the “anticipation of litigation” limitation and thus to require disclosure of each person whom the other party expects to call as an “expert witness” without qualification or clarification. Since neither the language relied on in Hutchins, nor the 1993 Federal Rule language is in the current Vermont rule, uncertainty and inconsistency in practice have resulted—for example, on the question of whether opinions of defendants or employees of defendants sued for professional negligence, or of plaintiffs’ treating physicians must be disclosed. See Stella, 2013 VT 8, ¶ 17. The present amendment answers the question in the interest of clarity and fair notice by adopting the federal language to require that all witnesses with opinions under Rules of Evidence 702, 703, or 705 be disclosed. The amendment does not, however, adopt any of the heightened disclosure requirements of the federal rule. There is no automatic disclosure. No report is required. The amended rule retains the existing provisions that rely on expert witness disclosures, by counsel, in response to interrogatories. An interrogatory may ask for the subject matter of the expert’s testimony, the substance of the expert’s facts and opinions, and a summary of the grounds for each opinion. Note that the nature, number, and timing of interrogatories permitted to be made under amended Rule 26(b)(5)(A)(i), or of other expert discovery under Rule 26(b)(5), may be established in a scheduling order under Rule 16.2 entered after a discovery conference under Rule 26(f). The discovery conference may be held at any time after commencement of the action on the court’s own motion or the motion of a party and may be combined with a pretrial conference under Rule 16. Specifically, with respect to the testimony of treating physicians, production of treatment records will suffice if the response states that the treating physician’s opinion testimony will be restricted to that set forth in her treatment records. If the opinion goes beyond that, however, the amended rule makes clear that the party who is answering discovery must disclose the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions of the expert and a summary of the grounds for each opinion.

Reporter’s Notes—Second 2018 Amendment: Rules 26(b)(4) and (5) are amended to correct internal references to other provisions of the rule that were not corrected when the rule was amended by order of July 14, effective September 18, 2017.

Reporter’s Notes—First 2018 Amendment: Rule 26(f) is amended to change its 15-day time period to 14 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.

Reporter’s Notes—2017 Amendment: Rule 26 is amended to adapt portions of amendments to F.R.C.P. 26 effective December 1, 2015. See, generally, Federal Advisory Committee’s Note to 2015 amendments of F.R.C.P. 26. New Rule 26(b)(1) incorporates amended F.R.C.P. 26(b)(1) verbatim, significantly redefining the scope of discovery under the former Vermont rule. Discovery must now be relevant to any party’s claim or defense, as opposed to being reasonably calculated to lead to the discovery of admissible evidence. Now, if information is otherwise within the scope of the rule, it “need not be admissible in evidence to be discoverable.” A proportionality requirement has been added, saying that discovery may now only be obtained if it is “proportional to the needs of the case” as defined by five factors. These factors were added to the Federal Rule by 1983 and 1993 amendments that were not adopted for V.R.C.P. 26(b)(1). New Rule 26(b)(2)(A) is carried forward from present Rule 26(b)(1) to which it was added by a 2009 amendment incorporating what is now F.R.C.P. 26(b)(2)(B). Former Rules 26(b)(2)-(5) are renumbered (3)-(6). Rule 26(c)(2) is amended to adopt the 2015 amendment to F.R.C.P. 26(c)(1)(B), allowing a protective order to address “the allocation of expenses” to eliminate any doubt that an order could include such a provision. See Federal Advisory Committee’s Note to 2015 amendment of F.R.C.P. 26(c)(1)(B). Rule 26(f) is amended to adopt the 2015 amendment adding F.R.C.P. 26(f)(3)(C) to provide that the discovery plan include issues about electronically stored information.

Reporter’s Notes—2012 Amendment: Rule 26(b)(4)(A)(i) continues to provide that the disclosure requirement of paragraph (4) does not extend to “event witnesses,” in contrast to the requirement of Federal Rule 26(a)(2)(A) as adopted in 1993, which applies to all opinion witnesses qualified and testifying as experts under V.R.E. 702, 703, and 705. The Vermont rule is consistent with the holding of Hutchins v. Fletcher Allen Health Care, Inc., 172 Vt. 580, 582, 776 A.2d 376, 379 (2001) (mem.), that an expert who is an event witness should be treated for discovery purposes as an ordinary witness. Subparagraph (A)(iii) is added to make clear that a retained or specially or regularly employed expert’s final report and supporting exhibits, if not protected by new subparagraph (C), may be obtained by an opposing party through a request for production or a subpoena duces tecum under Rules 34, 30(b)(1) or (5), or 45. This provision is not found in the federal rule, because the report and supporting material must accompany disclosure of such a witness under Federal Rule 26(a)(2)(B). Rules 26(b)(4)(B) and (C) are added to adapt to Vermont practice December 2010 amendments of Federal Rule 26(b)(4) specifying that work-product protections for the draft reports of certain experts, and most communications between those experts and deposing parties’ lawyers, survive the identification of the expert as a testifying expert. Captions are provided for subparagraphs (A)-(E) for consistency with the federal rule. Subparagraph (B) extends the trial preparation and work-product protections of Rule 26(b)(3) to drafts of any answer to an interrogatory concerning identity and testimony of any expert identified under Rule 26(b)(4)(A)(i) and to drafts of any report by such an expert. Subparagraph (C) further extends the trial preparation and work-product protections to all communications in any form between the expert and a party’s lawyer, with exceptions for communications regarding the expert’s compensation or data or assumptions provided by the lawyer as a basis for the expert’s opinions. Subparagraphs (B) and (C), stating what work-product protections survive disclosure of an expert witness, are intended to allow attorneys to interact freely with testifying experts without exposing the attorney’s work-product or imposing the expense of retaining both consulting and testifying experts to avoid that exposure. Even when communications are subject to the exceptions, or otherwise discoverable, the protection of Rule 26(b)(3) against disclosure of the attorney’s mental impressions and the like continues to apply. See, generally, Federal Advisory Committee’s Note to 2010 amendment of Federal Rule 26(b)(4). A simultaneous amendment of V.R.E. 510 addresses the waiver of intangible work-product. Prior to its adoption, the only court rule governing waiver of work-product was V.R.C.P. 26(b), which by its terms is limited to “documents and tangible things otherwise discoverable under subdivision (b)(1).” Discovery of intangible communications was governed by the common-law principles of Hickman v. Taylor, 329 U.S. 495 (1947). See original Reporter’s Notes to Rule 26(b). The specific provisions of V.R.C.P. 26(b) will control over the general provisions of amended V.R.E 510. See Reporter’s Notes to 2011 amendment of V.R.E. 510. While V.R.C.P. 26(b) generally is limited in scope to the protection of “documents and tangible things otherwise discoverable under subdivision (b)(1),” V.R.E. 510 applies to waiver of both tangible and intangible work-product. However, the present amendment of Rule 26(b)(4) protects as work-product various communications with expert witnesses regardless of whether those communications are contained in documents or are in some other tangible form. Thus, to the extent a communication is protected by Rule 26(b)(4), regardless of whether it is in tangible or intangible form, that subdivision will govern. Otherwise, Rule 26 will govern only as to documents and other tangible forms of communication. Amended V.R.E. 510 will govern questions of waiver as to intangible communications other than those addressed by V.R.C.P. 26(b)(4), and to that extent modifies Hickman v. Taylor, supra. Former subparagraphs (B) and (C) are redesignated (D) and (E) and carried forward with captions from the amended Federal Rule. New language in (E) makes clear that clause (i) applies both to retained or specially employed experts and to nontestifying experts for whom the party is also to be compensated under (ii).

Reporter’s Notes—2011 Amendment: See Reporter’s Notes to simultaneous amendment making the Vermont Rules for Electronic Filing permanent.

Reporter’s Notes—2010 Amendment: Rules 4(b), (l)(3); 5(b), (e), (f); 6(a), (e); 10(d); 11(a), (b); 26(g); 40(a), (b); 45(a)(1)(G); 77(c), (d); 79(a)(1), (2); 79.1(g) of the Vermont Rules of Civil Procedure rules are amended or added to conform to the Vermont Rules for Electronic Filing as adopted by simultaneous emergency amendment. See Reporter’s Notes to those rules.

Reporter’s Notes—2009 Amendment: V.R.C.P. 26(b) and (f) are amended as part of a series of amendments conforming the Vermont Rules of Civil Procedure to 2006 amendments of the Federal Rules of Civil Procedure that made specific provision for discovery of electronically stored information. See Reporter’s Notes to simultaneous amendments of V.R.C.P. 16.2, 33, 34, 37, 45. The term “electronically stored information” has the same broad meaning in all of these amendments that is given it in the amendment of V.R.C.P. 34(a). These amendments for the most part codify the practice that has developed under existing standards. See American Bar Association Section of Litigation, 57-76 (Revised, August 2004), http://www.abanet.org/litigation/discoverystandards/; Conference of Chief Justices, (August 2006), http://www.ncsconline.org/images/EDiscCCJGuidelines_Final.pdf; Uniform Rules Relating to the Discovery of Electronically Stored Information (August 2007), 14 Supp. 10 (2008), http://www.law.upenn.edu/bll/archives/ulc/udoera/2007_final.htm. Although the and Uniform Rules reflect that existing practice, it is preferable to spell out in the Vermont Rules specific provisions concerning discovery of electronically stored information, rather than await case-by-case development. Adoption of the Federal Rules amendments, so far as consistent with existing Vermont provisions, will retain the basic uniformity between state and federal practice that is a continuing goal of the Vermont Rules. (Note that, effective December 1, 2007, the Federal Rules were completely “restyled” in a comprehensive set of amendments that diminish uniformity of form and language until Vermont can follow suit. Uniformity of practice will continue, however, because the “restyling” was intended to make no substantive change in the operation of the Federal Rules.) The need for accessible and understandable procedural rules, as described in the Introduction to the Conference of Chief Justices, Guidelines, supra , at v-vii, reflects the fact that Most documents today are in digital form. “Electronic (or digital) documents” refers to any information created, stored, or best utilized with computer technology of any sort, including business applications, such as word processing, databases, and spreadsheets; Internet applications, such as e-mail and the World Wide Web; devices attached to or peripheral to computers, such as printers, fax machines, pagers; web-enabled portable devices and cell phones; and media used to store computer data, such as disks, tapes, removable drives, CDs, and the like. There are significant differences, however, between conventional documents and electronic documents— differences in degree, kind, and costs . . . . The volume, number of locations, and data volatility of electronic documents are significantly greater than those of conventional documents . . . . [D]igital transactions (creation of an electronic airline ticket, for example) often create no permanent document in electronic or any other form . . . . In addition, unlike conventional documents, electronic documents contain non-traditional types of data including metadata, system data, and “deleted” data. Cost differences are often thought to include differences in the allocation of costs [from the requesting to the responding party] as well as the amount of costs [through significant expense for technology experts]. On the other hand, . . . [w]hen properly managed, electronic discovery allows a party to organize, identify, index, and even authenticate documents in a fraction of the time and at a fraction of the cost of paper discovery while virtually eliminating costs of copying and transport. Until recently, electronic discovery disputes have not been a standard feature of state court litigation in most jurisdictions. However, because of the near universal reliance on electronic records both by businesses and individuals, the frequency with which electronic discovery-related questions arise in state courts is increasing rapidly, in all manner of cases. Uncertainty about how to address the differences between electronic and traditional discovery under current discovery rules and standards “exacerbates the problems. Case law is emerging, but it is not consistent and discovery disputes are rarely the subject of appellate review” [quoting Committee on Rules of Practice and Procedures of the Judicial Conference of the United States, Report of the Civil Rules Advisory Committee, p.3 (Washington, DC: August 3, 2004)]. In summary, the present amendments address the principal concerns reflected in the Standards, Guidelines, and Uniform Rule: • V.R.C.P. 16.2 is amended to establish a process for the parties and court to address early issues pertaining to the disclosure and discovery of electronically stored information and of trial-preparation material. • V.R.C.P. 26 is amended to provide standards for motions to compel or for a protective order when electronically stored information is “not reasonably accessible,” to provide a “claw-back” procedure for claims of privilege and protection of trial-preparation materials, and to provide for consideration in the discovery conference order of issues relating to the disclosure and discovery of electronically stored information. • V.R.C.P. 33(c) is amended to provide expressly that an answer to an interrogatory involving review of business records should involve a search of electronically stored information. • V.R.C.P. 34 is amended to provide a procedure for addressing objections to production of electronically stored information. • V.R.C.P. 37(f) is added to create a “safe harbor” that protects a party from sanctions for failing to provide electronically stored information lost because of the routine operation of the party’s computer system. • V.R.C.P. 45 is amended to conform the procedure and standards for subpoenas of electronically stored information to the other amendments regarding discovery of electronically stored information. The amendment to V.R.C.P. 26(b)(1) adopts virtually verbatim the 2006 amendment adding F.R.C.P. 26(b)(2)(B). The new rule allows the party from whom discovery of electronically stored information is sought to decline to comply with a request on the ground that the information is not reasonably accessible without undue burden or cost. The objecting party bears the burden of establishing that ground on a motion to compel or for a protective order. Even if the ground is established, the court may order discovery for good cause and with appropriate conditions. Accessibility depends on the nature of the information and the system in which it is stored. Whether burden and cost are undue depends on the circumstances of the case, including the availability of the information from other sources, its importance to the issues, and the parties’ resources. These factors would be addressed in determining whether good cause exists for the requested discovery. The claim that accessibility is not reasonable does not relieve the responding party from existing duties to preserve evidence. See, generally, Advisory Committee’s Note to 2006 Amendment of F.R.C.P. 26(b)(2)(B). V.R.C.P. 26(b) is also amended by the addition of a new paragraph (5) concerning claims of privilege and protection of trial-preparation materials, now of particular importance in view of the potential scope of discovery of electronically stored information. New subparagraph (A), originally adopted as F.R.C.P. 26(b)(5) by a 1993 amendment, was not adopted for the Vermont rule at that time. It requires an express and detailed claim to give notice to the other party when discovery is withheld on those grounds. See Advisory Committee’s Note to 1993 Amendment of F.R.C.P. 26(b). New V.R.C.P. 26(b)(5)(B) contains the language of F.R.C.P. 26(b)(5)(B), added by the 2006 federal amendments. It recognizes that “the risk of waiver, and the time and effort to avoid it, can increase substantially because of the volume of electronically stored information and the difficulty in ensuring that all information to be produced has in fact been reviewed.” Advisory Committee’s Note to 2006 Amendment of F.R.C.P. 26(b)(5). Thus, the new provision establishes a procedure for a privilege or protection claim to be made after production. Whether the production operates as a waiver is left for case-by-case determination on the basis of developing case law. The producing party must give notice to the receiving party that will enable that party to decide whether to challenge the claim and whether to return, sequester, or destroy the information. The receiving party must also take steps to retrieve any information that it disclosed to others before receiving notice. The producing party must preserve the information pending a ruling on the motion. See Advisory Committee’s Note, supra. V.R.C.P. 26(f) is amended to specify that the issues to be addressed in the court’s order following a discovery conference include issues relating to the matters covered in amended Rules 26(b)(1) and (5)—discovery of electronically stored information, including the form or forms in which it should be produced under amended Rule 34(b), and privilege and protection claims. The language of the amendment is taken from the 2006 amendment of F.R.C.P. 26(f), describing the issues that are to be discussed in a discovery conference and included in the resulting discovery plan. For further discussion of the scope of the language, see Advisory Committee’s Note to 2006 Amendment of F.R.C.P. 26(f).

Reporter’s Notes—1996 Amendment: Rule 26 is amended in partial adoption of the extensive 1993 amendments to Federal Rules 26-37. Rule 26(a) is amended to make clear the availability of new Rule 45(a)(1)(C) for inspection of documents and premises in the control of nonparties. The provision is identical to Federal Rule 26(a)(5). The extensive 1993 amendments to Federal Rule 26, requiring mandatory disclosure of discoverable information at the outset of the proceeding, have not been adopted in view of the fact that implementation of these requirements is currently suspended in the United States District Court for Vermont and many other federal districts. Rule 26(b)(4)(A)(ii) is amended to adopt a provision of the 1993 amendments to the federal rules eliminating the requirement of court approval for discovery from experts to be called at trial. The change reflects the reality that requesting and taking depositions of trial experts has become standard practice. A simultaneous amendment of Rule 26(b)(4)(C) makes clear that the discovering party will ordinarily pay the expert’s fees and expenses. Since the deposition may be taken only after the party has received the summary of the expert testimony required in answer to an interrogatory under Rule 26(b)(4)(A)(i), parties will be able to avoid the expense of unnecessary depositions. Rule 26(e) is amended to cast in affirmative terms the duty to supplement or correct discovery responses. The amendment incorporates the standard for supplementation adopted in the 1993 amendment of Federal Rule 26(e). Accordingly, the responses specified in paragraphs (1)-(3) of the subdivision must be supplemented if they are subsequently learned to be incorrect and have not otherwise been corrected. The rule no longer requires that the party “know” that the information is incorrect or that a failure to correct would be “a knowing concealment.” The amended rule also draws a distinction between information concerning the identity of witnesses, which under paragraph (1) must be provided to supplement even an answer to a question on deposition, and other information, which under paragraph (2) must be supplemented only if given in a response to another discovery device. As under prior Rule 26(e)(3), the duty to supplement responses may also arise by specific court order or agreement or a new request of the parties. Rule 26(g) is amended for conformity with the 1993 amendments to Federal Rule 26(g). A simultaneous amendment adding V.R.C.P. 11(d) makes clear that Rule 26(g) and Rule 37 govern sanctions for discovery abuse. The first paragraph of Rule 26(g) is amended to conform to the simultaneous amendment of Rule 11(a) requiring the use of a “mailing” address. The final paragraph of Rule 26(g) is amended for consistency with Rule 37(a)(4) and (b)(2).

Reporter’s Notes—1992 Amendment: Rule 26(h) is added to provide procedure for avoiding discovery disputes and for resolving them in a more efficient manner. The rule is patterned after Rule 4.C. of the Local Rules of Procedure of the United States District Court for the District of Vermont. The federal local rule is followed because it has worked well and because many Vermont practitioners already have become familiar with its procedures. The rule prohibits filing of discovery motions unless and until the party filing the motion has conferred with opposing counsel in an effort to resolve the dispute. An affidavit, or a certificate pursuant to Rule 11, must be filed with the motion, documenting the date of the consultation and the participants. Refusal to participate in a discovery conference may lead to sanctions, including attorney’s fees. The rule also structures the presentation to the court of any discovery dispute. A memorandum must contain a description of the nature of the case, a specific verbatim listing of the disputed items, and immediately following each specification the reason why the specified request should be allowed or disallowed. However, the memorandum need not be a detailed one if the ground for the motion is only that discovery has not been produced within the required time period. The rule refers to motions of this category by reference to Rule 37(d).

Reporter’s Notes—1984 Amendment: Rules 26(a) and (b) are amended and Rule 26(g) is added as part of the series of changes made to conform the Vermont rules to the recent amendments to the Federal Rules of Civil Procedure. See Reporter’s Notes—1984 Amendment to Rule 7. The amendments to this rule are an additional response to perceived abuses in discovery. See Reporter’s Notes—1982 Amendment to Rule 26; American Bar Association, Second Report of the Special Committee for the Study of Discovery Abuse (1980), reprinted in 92 F.R.D. 137 (1982). Rule 26(a) has given the court the power to limit the frequency of discovery. Because the discovery rules can be used as a tactical weapon, the authorization has been replaced by a command in subdivision (b)(1) if the Superior Judge makes certain findings of discovery abuse. The grounds are those that have been used in the past to justify issuing protective orders under subdivision (c). See Advisory Committee Note—1983 Amendment to F.R.C.P. 26 in 97 F.R.D. 216, 217 (1983). The intent of the change is to encourage judges to be “more diligent in preventing needless discovery.” Rosenberg & King, Curbing Discovery Abuse in Civil Litigation: Enough is Enough, 1981 B.Y.U.L. Rev. 579, 588. Rule 26(g) is added to parallel the amendments to Rule 11 for discovery papers. See Reporter’s Notes—1984 Amendment to Rule 11. It is based on a proposal in the second report (1980) of the ABA’s Special Committee for the Study of Discovery Abuse. See Flegal & Umin, Curbing Discovery Abuse in Civil Litigation: We’re Not There Yet, 1981 B.Y.U.L. Rev. 597, 607-16. Note that the requirement to make a reasonable inquiry is not intended to make the lawyer certify to the truth of the client’s factual responses to discovery. See Advisory Committee Note— 1983 Amendment to F.R.C.P. 26 in 97 F.R.D. 216, 219 (1983). The addition of new sanctions is intended to encourage their usage to deter discovery abuse. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976); Note, The Emerging Deterrence Orientation in the Imposition of Discovery Sanctions, 91 Harv. L. Rev. 1033 (1978). At the same time, the trial court must be careful that inquiries into whether a lawyer or party has met the obligations of Rule 26(g) not get out of hand to defeat the very ends the subdivision is intended to reach. See Schroeder & Frank, Discovery Reform: Long Road to Nowheresville, 68 A.B.A.J. 572 (1982). Subdivision (f) is added to Rule 26 to provide authority for a discovery conference. This amendment and others made in 1982 follow amendments made in the Federal Rules of Civil Procedure, effective August 1, 1980, with only minor deviations. See 85 F.R.D. 521 (1980) (order of the Supreme Court accompanied by the amendments and advisory committee notes). These amendments also apply in district court by incorporation through the applicable District Court Civil Rules.

Reporter’s Notes—1982 Amendment: The federal amendments resulted from an extensive study of discovery in the federal courts. Despite the view of the ABA Section of Litigation that discovery abuse is serious and widespread, the Advisory Committee on Federal Civil Rules and the Supreme Court concluded that abuse of discovery, while serious in a few cases, is not widespread. Compare American Bar Association, Report of the Section of Litigation Special Committee for the Study of Discovery Abuse (App. Draft 1977) with Advisory Committee Note to F.R.C.P. 26 in 85 F.R.D. 521, 526-27 (1980). As a result, the amendments embodied relatively minor reforms and clarifications. The federal amendments created an opportunity to look at the operation of the discovery rules in Vermont. The Advisory Committee on the Rules of Civil Procedure solicited comments from lawyers and judges and concluded that the discovery rules are working and there is no reason for substantial change. However, to keep the Vermont rules consistent with the federal rules, to give the trial court power to keep discovery moving within reasonable limits and to deal with isolated instances of abuse, the advisory committee has recommended that most of the federal changes be adopted in Vermont. The most important of the federal changes is the addition of subdivision (f) to Rule 26. The Vermont addition is identical, with one exception noted below. The addition authorizes a discovery conference at the request of a party or on the court’s initiative. If a party requests a conference, the motion must contain a number of items including a proposed plan and a statement showing the attorney for the moving party has tried to reach agreement with opposing counsel. Participation “in good faith” in framing a discovery plan is required by the subdivision, if a plan is proposed by any attorney. The rule goes on to specify the content of the discovery order to come from the discovery conference and to authorize combining the discovery conference with a pretrial conference where possible. Whether the conference is called by a party or the court, the order would be expected to cover the items that must be included with a party’s motion. The addition of this subdivision is not intended to change the general approach that the court not be involved in “the run-of-the-mill discovery attempt.” See Kaufman, Judicial Control over Discovery, 28 F.R.D. 111, 116 (1960). In fact, by requiring the parties to participate in good faith in framing a discovery plan, the rule clearly intends to avoid using extensive judicial time supervising discovery. On the other hand, the court’s authority to call a discovery conference does allow the court to intervene early in the discovery process to deal with problems before the parties become locked into intractable disputes. Some judges will no doubt take a broader view than others of the percentage of the docket that will benefit from discovery conferences. There is one change from the federal version of Rule 26(f). The objections or additions to a motion for discovery conference must be filed within 15 days after service of the motion, rather than within 10 days after service as specified in the federal rule. The 15 day period was adopted because under Rule 78(b) that is the period for filing responses to motions generally. There is no reason to deviate from the general rule for responses to discovery conference motions. Note that amendments to Rule 37 subject a failure to obey a discovery conference order to normal discovery sanctions and create new sanctions for failure to participate in framing a discovery plan.

Reporter’s Notes: Rules 26-37 are based on the federal discovery rules as amended effective July 1, 1970. Adoption of the discovery rules is not a drastic change for Vermont, because the substance of most of the federal discovery devices as they stood before the 1970 amendments had already been adopted by statute or rule of court. See 12 V.S.A. §§ 1231- 1286 (now superseded); former County Court Rules 4.2, 25 (applicable in chancery by virtue of former Chancery Rule 56). The most significant changes that the rules make in Vermont practice are those embodied in the 1970 federal amendments. The federal amendments, a preliminary draft of which was presented to the bar in November 1967, were promulgated by the Supreme Court by Order of March 30, 1970. 48 F.R.D. 459 (1970). The amendments make three major kinds of changes in the discovery rules: (1) changes in the scope of discovery, including such matters as insurance policies, trial preparation materials, and discovery of experts; (2) changes of a mechanical sort, largely intended to make discovery more self-operating; (3) a rearrangement of the order of the rules for the sake of clarity. The changes in the scope of discovery are intended to resolve a number of issues of interpretation upon which the lower federal courts had been split. Such matters are particularly appropriate for resolution by rule, because discovery matters are not subject to appellate review in any consistent manner, there often being no effective way to obtain review in the ordinary case before events make the issues moot. Moreover, the discovery rules are a complex and detailed system of out-of-court conduct which does not lend itself to case-by-case regulation. The provisions for increasing extrajudicial operation of the rules, and the other mechanical changes, were based to a great extent on a field study of discovery carried out by the Columbia Law School’s Project for Effective Justice. See Glaser, Pre-trial Discovery and the Adversary System (1968). This survey demonstrated that many of the limitations in the rules were not observed in practice, either being waived by stipulation or enlarged by the court on motion. The rearrangement of the rules is intended to accommodate amendments which have altered the relationship of the rules to one another and to put the rules generally in a more logical order. Rule 26 contains general provisions as to scope and procedure applicable to all of the discovery devices. Rules 27 and 28 cover the special problems of depositions before action and persons before whom depositions may be taken. Rule 29 as to stipulations applies to all of the devices. Rules 30 to 36 deal with the separate discovery devices individually. Rule 37 contains sanction provisions applicable to all of the devices. The Reporter’s Notes to this and the other discovery rules are primarily intended to point out the differences between the rules as adopted and prior Vermont law. For a full account of the reasons behind the changes made in the 1970 federal amendments, see the federal Advisory Committee’s Explanatory Statement and Notes, in Report of the Judicial Conference of the United States, October 1969, Appendix 2, 48 F.R.D. 487 (1970). See, generally, 8 Wright & Miller, Federal Practice and Procedure §§ 2001-2293 (1970). For other provisions pertaining to discovery, see Rules 5(a) (service), 45(d) (subpoena), 54(g) (costs), 69 (execution). In one major departure from the Federal Rules, as well as from prior Vermont practice, these rules permit “any Superior Judge,” rather than the court in which the action is pending to issue most orders necessary in the administration of discovery. See, e.g., Rules 26(c), 37(a). Of course, counsel should not expect a judge to alter or countermand an order previously made by another judge, if there has been no change in circumstances. Cf. Rule 37(a)(1). Rule 26(a) is new both to Vermont practice and the federal rule. The subdivision is intended to make clear that, for purposes of the general provisions of Rule 26 and other rules, the term “discovery” includes all of the devices. Rule 26(b) as to scope of discovery applies to all of the devices listed in Rule 26(a). Vermont had previously attained the same result under 12 V.S.A. § 1261 (now superseded). Rule 26(b)(1), the general provision covering scope, is for all practical purposes identical to 12 V.S.A. § 1232 (now superseded), except for verbal differences necessary to indicate the subdivision’s applicability to all discovery. Rule 26(b)(2), (3), and (4), dealing with special problems of scope, were all added to the federal rules by the 1970 amendments. Rule 26(b)(2), in permitting discovery of the “existence and contents of any insurance agreement” potentially subject to a judgment in the action, resolves a point on which the federal courts had been split. See 8 Wright & Miller § 2010. No Vermont case on discovery of insurance has been found, but the Vermont courts have been traditionally reluctant to let insurance go to the jury. See Joslin v. Griffith, 125 Vt. 104, 211 A.2d 249 (1965); Ryan v. Barrett, 105 Vt. 21, 162 A. 793 (1932). The rule expressly makes clear that information about an insurance agreement is not admissible at trial merely because discovery has been allowed. Discovery is permitted, however, not because it will lead to admissible evidence, but because, 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 just 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. An application for insurance is excluded from discovery under this paragraph, because it may contain information beyond the intended scope. The application would be discoverable under the general provisions of Rule 26(b)(1), however, if it contained information otherwise relevant. Rule 26(b)(3), permitting discovery of trial preparation materials upon a proper showing, is new to Vermont, although presumably the Vermont courts, in applying the former discovery statutes, would have followed Hickman v. Taylor, 329 U.S. 495 (1947), upon which the rule is in part based. The protection of the rule applies only to documents or other tangible items, but goes beyond Hickman in protecting such materials not only when prepared for trial by an attorney but when prepared by the party himself or his representative, including his insurer. This rule and Rule 34 abandon the standard of “good cause” for production contained both in former Federal Rule 34 and in 12 V.S.A. § 1262 (now superseded), based upon the former federal rule. Now, under Rule 34, production, other than of trial preparation materials, is freely available, subject only to the general protective provisions of Rule 26(c). See Reporter’s Notes to Rule 34. Trial preparation materials are discoverable under Rule 26(b)(3) upon a showing expressed in the rule in terms of actual need and potential hardship. In the spirit of Hickman, the rule protects absolutely against disclosure of documents or parts of documents or other things containing “mental impressions, conclusions, opinions, or legal theories of an attorney, or other representative.” This protection applies only to production of documents or things; under Rules 33 and 36, interrogatories and requests for admissions as to the application of law to fact may require some disclosure of mental impressions, conclusions, or opinions. See Reporter’s Notes to Rules 33, 36. Any more general effort to obtain discovery of such matters, however, as by direct question on oral deposition, would be subject to the protection of the Hickman doctrine as a matter of inherent power. The final paragraph of Rule 26(b)(3) extends to all actions the right previously given to parties and witnesses in personal injury actions by 12 V.S.A. § 1610 (now superseded) to obtain a copy of a written statement without special showing. Rule 26(b)(4), permitting discovery of experts, is also new to Vermont. Note that the rule applies only to “facts known and opinions held” that were “acquired or developed in anticipation of litigation or for trial.” An expert whose knowledge or opinions are relevant because of his participation in the events giving rise to suit should be treated for discovery purposes as an ordinary witness. Subparagraph (A) permits discovery from experts who are to be called as witnesses, in order to allow effective preparation for cross-examination and rebuttal where testimony is of a complex technical nature. Subparagraph (B) permits discovery in exceptional circumstances from an expert retained by an adversary but not to be used at trial. Circumstances might be appropriate for such discovery, for example, in a case where the expert’s original inspection of tangible matter involved in the suit had resulted in the alteration or destruction of such matter. See Colden v. R. J. Schofield Motors, 14 F.R.D. 521 (N.D. Ohio 1952). Neither provision is intended to permit one party to build his case out of another’s witnesses. Subparagraph (A) allows discovery only at a time when independent preparation for trial on both sides should be substantially complete. Subparagraph (B) operates only in circumstances in which fairness demands discovery because the discovering party has no other recourse. Moreover, subparagraph (C) requires the discovering party not only to pay the expert a reasonable fee for time spent in responding to discovery but in a proper case to pay a portion of the fees and expenses incurred by the party originally retaining the expert. Rule 26(c) is substantially identical to 12 V.S.A. § 1244 (now superseded), which was based on former Federal Rule 30(b), the source of this rule. The principal difference between the rule and the former statute is that the rule makes clear its application, not merely to depositions, but to all of the discovery devices. The rule also permits issuance of protective orders by any Superior Judge as a matter of convenience. The final paragraph of the subdivision makes clear that when a motion for a protective order is denied, the judge may make the kind of order compelling discovery that he would make under Rule 37(a) if a separate motion for such order had been made. Rule 26(d), added to the federal rule by the 1970 amendments, is new to Vermont practice, although 12 V.S.A. § 1238 (now superseded), providing that after commencement of the action depositions could be taken at any time, was similar in effect. The rule, by eliminating any blanket rules as to sequence and priority of discovery, is intended to assure maximum flexibility in the procedure. Rule 26(e) is also new to both Vermont and federal practice. The rule does not impose the impracticable burden of a continuing check by the attorney upon the accuracy of all responses previously given by his client. It requires supplementation only in two situations where after-acquired information is of great importance and is particularly likely to come to the attorney’s attention. These situations arise when new information about witnesses or new information which to the party’s knowledge makes a prior answer incorrect is acquired. Paragraph (3) also imposes a duty to supplement if so ordered or agreed or upon a new discovery request. Although there is no express sanction provision for Rule 26(e), the federal Advisory Committee’s Note states that “The duty will normally be enforced, in those limited instances where it is imposed, through sanctions imposed by the trial court, including exclusion of evidence, continuance, or other action, as the court may deem appropriate.” 48 F.R.D. 487, 508. Annotations Default judgment. Duty to supplement interrogatories. Experts. Extraordinary relief. Failure to comply with discovery requirements. Limitations on discovery. Privileged information. —Prerequisites to discovery. —Waiver of privilege. Protective orders. Sanctions. Default judgment. Default judgment against seventeen individual defendants for failure to comply with discovery orders could not be reviewed where transcript did not show that defendants’ noncompliance was willful or in bad faith nor whether less drastic sanctions were considered, particularly for nine defendants who attempted to comply with discovery requests. C.C. Miller Corp. v. Ag Asset, Inc., 151 Vt. 604, 563 A.2d 626, 1989 Vt. LEXIS 103 (1989). Duty to supplement interrogatories. In a malpractice action, although an affidavit of plaintiff’s expert filed as part of her response to defendants’ second motion for a summary judgment may have emphasized one previously stated theory of liability over another, it did not contain newly acquired information or state a new theory that had not previously been disclosed at the deposition; accordingly, the affidavit contained no genuinely new material within the meaning of subdivision (e) of this rule. Smith v. Central Vermont Hospital, Inc., 2004 VT 113, 177 Vt. 640, 868 A.2d 665, 2004 Vt. LEXIS 327 (2004) (mem.). In a malpractice action, even if plaintiff’s expert’s subsequent responses in an affidavit filed as part of her response to defendants’ second motion for a summary judgment implied that he had abandoned the theory set forth in his deposition, there was no question that defendants were fully informed of, and amply prepared to counter, the expert’s initial theory of causation; thus, the trial court erred in excluding the affidavit as a sanction for a purported violation of subdivision (e) of this rule. Smith v. Central Vermont Hospital, Inc., 2004 VT 113, 177 Vt. 640, 868 A.2d 665, 2004 Vt. LEXIS 327 (2004) (mem.). Differences in recounting of facts were not so marked that trial court’s ruling on duty to supplement deposition transcripts was abuse of discretion where shifting recollections of events which transpired five years previously were understandable and differences did not change any expert’s more significant opinions or reveal any knowing concealments. Rooney v. Medical Center Hospital of Vermont, Inc., 162 Vt. 513, 649 A.2d 756, 1994 Vt. LEXIS 107 (1994). Although procedure governing sanctions for discovery abuse does not specifically address party’s failure to seasonably supplement discovery, trial court has inherent authority to enforce rule requiring supplementation by excluding evidence, granting a continuance, or by taking other appropriate action. White Current Corp. v. Vermont Electric Coop., 158 Vt. 216, 609 A.2d 222, 1992 Vt. LEXIS 46 (1992). Absent an abuse of discretion, trial court’s use of sanctions for violating rule requiring discovery supplementation will be upheld. White Current Corp. v. Vermont Electric Coop., 158 Vt. 216, 609 A.2d 222, 1992 Vt. LEXIS 46 (1992). Trial court did not abuse discretion by excluding expert testimony in breach of contract action between electricity producers, where party seeking to introduce testimony did not disclose intention to do so until one week before trial and did not disclose experts’ identities to court until day before trial, despite having received interrogatories requesting such information one and one-half years earlier; permitting testimony would have frustrated primary purpose of liberal civil discovery rules: prevention of surprise to one’s opponent. White Current Corp. v. Vermont Electric Coop., 158 Vt. 216, 609 A.2d 222, 1992 Vt. LEXIS 46 (1992). Under subdivision (e)(1)(B) of this rule, a party has no duty to supplement interrogatories until such time as it is expected that the evidence will actually be used. Zinn v. Tobin Packing Co., 140 Vt. 410, 438 A.2d 1110, 1981 Vt. LEXIS 628 (1981). Experts. Summary of the expert testimony required in answer to an interrogatory under the rule requiring disclosures of expert witnesses and their expected testimony helps parties avoid the expense of unnecessary depositions. Thus, the purpose of the rule is to allow defendants to garner enough information to make a choice about whether and how to take a deposition, but the rule does not assume that a deposition will be taken. Stella v. Spaulding, 2013 VT 8, 193 Vt. 226, 67 A.3d 247, 2013 Vt. LEXIS 7 (2013). In a medical malpractice case, asking plaintiff to describe the incidents of negligence committed, the dates of those acts, and how those acts deviated from the standard of care was within the bounds of what was required to be disclosed by the rule requiring disclosures of expert witnesses and their expected testimony. The case presented a far more complex series of facts than plaintiff’s expert disclosure suggested and accordingly more detailed disclosures were properly required; therefore, it was not error for the trial court to conclude that these facts were a necessary part of the “substance of the facts and opinions as to which the expert is expected to testify.” Stella v. Spaulding, 2013 VT 8, 193 Vt. 226, 67 A.3d 247, 2013 Vt. LEXIS 7 (2013). Trial court’s order prohibiting defendants from presenting expert testimony at trial was not an abuse of discretion or inconsistent with substantial justice. Defendants were offered sufficient time to obtain and disclose experts under the original discovery schedule, and they offered no reasons or excuse for their failure to disclose experts within the time given under the original schedule or for their decision not to move for an extension of time before their discovery deadline passed. Follo v. Florindo, 2009 VT 11, 185 Vt. 390, 970 A.2d 1230, 2009 Vt. LEXIS 3 (2009). In an action brought under the Consumer Fraud Act, plaintiffs failed in their argument that the trial court should have excluded testimony of a witness about the design and manufacturing of auto at issue and about defendant’s relationship with another manufacturer because it was expert testimony that should have been disclosed before trial; the court properly rejected plaintiffs’ characterization of the testimony as expert testimony, moreover, it was plaintiffs’ counsel who opened the areas of inquiry to which plaintiffs objected on appeal. Jordan v. Nissan North America, Inc., 2004 VT 27, 176 Vt. 465, 853 A.2d 40, 2004 Vt. LEXIS 31 (2004). Trial court did not abuse its discretion in denying plaintiffs’ pretrial motion to add an expert witness to replace another, first, because the new witness was disclosed only a month before the jury drawing date, and allowing defendant adequate discovery would delay the trial significantly, and, second, because the testimony of the witness was cumulative to that of plaintiffs’ other expert witnesses. Hutchins v. Fletcher Allen Health Care, Inc., 172 Vt. 580, 776 A.2d 376, 2001 Vt. LEXIS 141 (2001) (mem.). In a medical malpractice action, defendant did not have the same obligation as plaintiffs to disclose the opinions of its doctors because these opinions were formed as a result of the doctors’ participation in the events that gave rise to the litigation and not “in anticipation of litigation or for trial.” Hutchins v. Fletcher Allen Health Care, Inc., 172 Vt. 580, 776 A.2d 376, 2001 Vt. LEXIS 141 (2001) (mem.). Extraordinary relief. If issue is substantial or sensitive, petition for extraordinary relief pursuant to V.R.A.P. 21 is an appropriate means for challenging pretrial discovery order on ground of trial court’s abuse of discretion. Monti v. State, 151 Vt. 609, 563 A.2d 629, 1989 Vt. LEXIS 110 (1989). Failure to comply with discovery requirements. In a medical malpractice case, the trial court did not abuse its discretion in concluding that plaintiff had failed to comply with defendants’ discovery request. It failed to answer a question about its theory of the case with more than general allegations, making no delineation as to what acts or omissions committed by defendants at particular times were negligent or how those acts led to the patient’s death. Stella v. Spaulding, 2013 VT 8, 193 Vt. 226, 67 A.3d 247, 2013 Vt. LEXIS 7 (2013). Trial court has inherent authority to enforce discovery requirements of V.R.C.P. 26 by excluding evidence, granting a continuance, or taking other appropriate action. Greene v. Bell, 171 Vt. 280, 762 A.2d 865, 2000 Vt. LEXIS 297 (2000). Court at medical malpractice trial did not err in excluding testimony of plaintiff’s expert, since testimony was outside scope of matters disclosed by plaintiff during discovery, and represented an unfair surprise to defendants. Greene v. Bell, 171 Vt. 280, 762 A.2d 865, 2000 Vt. LEXIS 297 (2000). Limitations on discovery. Trial court did not err in not allowing plaintiff to engage in additional discovery before issuing its summary judgment decision. It found a particular request to be irrelevant, and plaintiff offered no compelling argument to show that the trial court abused its discretion in doing so. Lay v. Pettengill, 2011 VT 127, 191 Vt. 141, 38 A.3d 1139, 2011 Vt. LEXIS 128 (2011). Trial court has an affirmative duty to limit discovery so as to protect parties from annoyance and excessive expense. Chrysler Corp. v. Makovec, 157 Vt. 84, 596 A.2d 1284, 1991 Vt. LEXIS 167 (1991). Trial court properly denied plaintiff’s motion for a continuance for the purpose of completing depositions, filed four days before summary judgment hearing was scheduled, where plaintiff had sixteen months between the filing of the complaint and the summary judgment hearing in which to conduct the necessary depositions, and more than eight months from the time her attorneys voluntarily adopted a discovery schedule. Poplaski v. Lamphere, 152 Vt. 251, 565 A.2d 1326, 1989 Vt. LEXIS 164 (1989). Decision of trial court to limit discovery will not be disturbed unless it is shown that such discretion was abused or entirely withheld. Poplaski v. Lamphere, 152 Vt. 251, 565 A.2d 1326, 1989 Vt. LEXIS 164 (1989). Privileged information. —Prerequisites to discovery. In a negligence case, the work-product privilege protected from discovery a recording of an interview of defendant’s truck driver conducted by an insurance adjuster. It was reasonable to conclude that the interview in question, conducted by the insurance adjuster nineteen days after plaintiff contacted defendant’s chief executive officer about the incident in question, was conducted in anticipation of litigation, and would thus be subject to the qualified privilege; furthermore, plaintiff failed to explain to the court below or on appeal what substantial need he had of the materials. Pcolar v. Casella Waste Systems, Inc., 2012 VT 58, 192 Vt. 343, 59 A.3d 702, 2012 Vt. LEXIS 57 (2012). The common-law attorney work-product privilege applied to notes and summaries of witness interviews taken by bar counsel’s investigator, and respondent in attorney misconduct proceeding was not entitled to discovery of such materials absent showing of substantial need and undue hardship, and finding of good cause. In re PCB File No. 92.27, 167 Vt. 379, 708 A.2d 568, 1998 Vt. LEXIS 4 (1998). The possible presence of a qualified privilege would require that before a plaintiff can insist on his discovery rights, he is burdened with the obligation to demonstrate to the trial court the specific need for the matter sought to be discovered, its relevance, and the existence or nonexistence of other available sources for the same information. Cockrell v. Middlebury College, 148 Vt. 557, 536 A.2d 547, 1987 Vt. LEXIS 548 (1987). —Waiver of privilege. There was no waiver of the attorney’s work-product privilege from disclosure, under subdivision (b)(4)(B) of this rule, of a report which had inadvertently been obtained by the opposing party, where counsel had never authorized or known that the document was disclosed to the opposing party. Hartnett v. Medical Center Hospital, 146 Vt. 297, 503 A.2d 1134, 1985 Vt. LEXIS 433 (1985). In a personal injury action, physicians’ reports requested by the defendant were discoverable and the trial court properly issued a discovery order directing plaintiff to produce the reports where defendant had requested the reports of any physicians who treated plaintiff for problems resulting from the alleged accident; the fact that defendant had not made a request for a physical or mental examination of the plaintiff and had not requested the reports of examining physicians did not preclude discovery since Rule 35, governing physical and mental examinations, did not preempt other discovery devices, the requested reports, which were in plaintiff’s actual possession, were unquestionably relevant in the action, and plaintiff had waived the patient’s privilege by the commencement of the action, so that the reports were not privileged within the meaning of this rule. Castle v. Sherburne Corp., 141 Vt. 157, 446 A.2d 350, 1982 Vt. LEXIS 496 (1982). In personal injury action, once plaintiff-patient has waived the statutory patient’s privilege by commencement of an action, such waiver applies to the discovery of matters causally or historically related to his health put in issue by the injuries and damages claimed in the action. Mattison v. Poulen, 134 Vt. 158, 353 A.2d 327, 1976 Vt. LEXIS 619 (1976). Protective orders. In determining whether high-level government officials should be protected from oral deposition, trial courts should weigh necessity to depose or examine official against, among other factors, substantiality of case in which deposition is requested; degree to which witness has first hand knowledge of or direct involvement; probable length of deposition and effect on government business if official must attend deposition; and whether less onerous discovery procedures provide information sought. Monti v. State, 151 Vt. 609, 563 A.2d 629, 1989 Vt. LEXIS 110 (1989). Governor’s motion for protective order “to resist compulsory process and a vexatious deposition” effectively raised issue of propriety of oral deposition of high-level government officials, even though request was cast in somewhat misleading language of executive privilege to resist testimonial compulsion. Monti v. State, 151 Vt. 609, 563 A.2d 629, 1989 Vt. LEXIS 110 (1989). Denial of governor’s motion for protective order against taking her oral deposition was an abuse of discretion where trial court did not evaluate necessity of deposition to prevent prejudice or injustice to party requesting it. Monti v. State, 151 Vt. 609, 563 A.2d 629, 1989 Vt. LEXIS 110 (1989). Where certain interrogatories might be propounded to a plaintiff on medical matters which prove to have no connection with the subject of the action and could result in a plaintiff being compelled to give humiliating and embarrassing answers, plaintiff can be protected by provisions of this rule which allow him to seek protective orders. Mattison v. Poulen, 134 Vt. 158, 353 A.2d 327, 1976 Vt. LEXIS 619 (1976). Sanctions. Trial court properly sanctioned plaintiffs’ counsel by requiring him to compensate defendants for their costs when counsel contacted the expert witness directly, without notice to defense counsel, to schedule a deposition, and then when the expert disclosed substantive information did not contact defense counsel to alert him to this but instead used the information as ammunition for a motion to strike the expert. Stopford v. Milton Town Sch. Dist., 2018 VT 120, 209 Vt. 171, 202 A.3d 973, 2018 Vt. LEXIS 199 (2018). Given plaintiff’s failure to comply with the court’s several orders to answer the interrogatories and to supplement the expert disclosure and the length of time that had passed, it was within the trial court’s discretion to sanction plaintiff for failing to comply. Responding to plaintiff’s failure to comply with its order to completely answer the interrogatories by precluding plaintiff from submitting evidence related to those interrogatories was within the trial court’s power and was not untenable or unreasonable. Stella v. Spaulding, 2013 VT 8, 193 Vt. 226, 67 A.3d 247, 2013 Vt. LEXIS 7 (2013). Because the sanction for failing to comply with discovery orders precluded plaintiff from offering certain evidence, but was not a dismissal, no special findings were required. Stella v. Spaulding, 2013 VT 8, 193 Vt. 226, 67 A.3d 247, 2013 Vt. LEXIS 7 (2013). Because actions that violate V.R.C.P. 11(b) would also violate provisions of Rule 26(g), trial court did not err in imposing sanctions against attorney under Rule 26(g), notwithstanding fact that evidence and argument at hearing on motion for sanctions was offered in erroneous belief that procedure was governed by Rule 11. Bigelow v. Bigelow, 171 Vt. 100, 759 A.2d 67, 2000 Vt. LEXIS 164 (2000). Attorney’s actions were in violation of V.R.C.P. 26(g), where there was no credible legal basis for his motion to compel and no legal authority for joining medical examiners as parties to underlying litigation, and attorney’s intemperate language was unprofessional, uncivil, and intended solely to harass and embarrass opposing counsel and party. Bigelow v. Bigelow, 171 Vt. 100, 759 A.2d 67, 2000 Vt. LEXIS 164 (2000).