Duty to Disclose; General

Provisions Governing Discovery (a) Required Disclosures. (1) Initial Disclosure. (A) In General. Except as exempted by RCFC 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties: (i) the name and, if known, the address and telephone number of each individual likely to have information— discoverable along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be for impeachment; solely (ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under RCFC 34 the other or documents evidentiary material, unless privileged or protected from each disclosure, on which computation is based, including materials bearing on the nature and extent of injuries suffered; and (iv) [not used]. (B) Proceedings Exempt from Initial following Disclosure. proceedings are exempt from initial disclosure: The (i) an action for review on an administrative record, including procurement protest and military pay cases; (ii) [not used]; (iii) [not used]; (iv) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision; (v) [not used]; (vi) [not used]; (vii) [not used]; (viii) [not used]; action (ix) an to enforce an arbitration award; and (x) an action under the National Childhood Vaccine Injury Act. (C) Time for Initial Disclosures—In General. A party must make the initial disclosures at or within 14 days after the Early Meeting of Counsel (see Appendix A ¶ 3) unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection the Joint Preliminary Status in Report. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure. (D) Time for Initial Disclosures—For Parties Served or Joined Later. A party that is first served or otherwise joined after the Early Meeting of Counsel (see Appendix A ¶ 3) must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order. (E) Basis for information Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case challenges or because the it another party’s sufficiency of 39 RCFC 26 disclosures or because another party has not made its disclosures. (2) Disclosure of Expert Testimony. (A) In General. In addition to the required by RCFC disclosures 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. (B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one 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. The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness’s qualifications, all a the including publications authored previous 10 years; of in list (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. (C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state: (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and RCFC 26 cont. 40 (ii) a summary of the facts and opinions to which the witness is expected to testify. (D) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made: (i) at least 90 days before the date set for trial or for the case to be ready for trial; or (ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under RCFC 26(a)(2)(B) or (C), within 30 days after the other party’s disclosure. (E) Supplementing the Disclosure. The these parties must disclosures when required under RCFC 26(e). supplement (3) Pretrial Disclosures. [Not used; see Appendix A ¶¶ 13, 15, and 16.] (4) Form of Disclosures. Unless the court orders otherwise, all disclosures under RCFC 26(a) must be in writing, signed, and served. (b) Discovery Scope and Limits. regarding discovery (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: parties may obtain any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. importance of the (2) Limitations on Frequency and Extent. (A) When Permitted. By order, the court may alter the limits in these rules on (B) Specific Limitations the number of depositions and interrogatories or on the length of depositions under RCFC 30. By order, the court may also limit the number of requests under RCFC 36. 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 for a to compel discovery or 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 order discovery from such sources if the requesting party shows good cause, considering the limitations of RCFC 26(b)(2)(C). The court may specify conditions for the discovery. nonetheless (C) When Required. On motion or on its own, the the court must frequency or extent of discovery otherwise allowed by these rules if it determines that: (i) discovery limit sought is the unreasonably cumulative or duplicative, or can be obtained from some other source that is more less convenient, burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by RCFC 26(b)(1). (3) Trial Preparation: Materials. (A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor insurer, or agent). But, subject to RCFC 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under RCFC 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. (B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other the representative litigation. concerning (C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person’s own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and RCFC 37(a)(5) applies to the award of expenses. A previous statement is either: (i) a written statement that the person has signed or otherwise adopted or approved; or (ii) a contemporaneous mechanical, stenographic, electrical, or other recording—or a transcription of it—that recites substantially the person’s oral statement. verbatim (4) Trial Preparation: Experts. (A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented If RCFC 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided. trial. at (B) Trial-Preparation Protection for Draft Reports or Disclosures. RCFC 26(b)(3)(A) and (B) protect drafts of any report or disclosure required 41 RCFC 26 cont. under RCFC 26(a)(2), regardless of the form in which the draft is recorded. (C) Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. RCFC 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under RCFC 26(a)(2)(B), 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 to be the opinions expressed; or (iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming to be the opinions expressed. (D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only: (i) as provided in RCFC 35(b); or showing (ii) on exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means. (E) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery: (i) pay the expert a reasonable fee for time spent in responding to RCFC discovery 26(b)(4)(A) or (D); and under (ii) for discovery under (D), also pay the other party a fair portion of RCFC 26 cont. 42 and fees it the reasonably incurred in obtaining the expert’s facts and opinions. (5) Claiming Privilege or Protecting Trial- expenses Preparation Materials. (A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of (B) Information the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. Produced. as promptly If information produced in discovery is subject to a claim of privilege or of protection trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a return, party must sequester, or destroy the specified information and any copies it has; must not use or disclose the is information until resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved. the claim (c) Protective Orders. (1) In General. A party or any person from whom discovery is sought may move for a protective order. The motion must include 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. The court may, for good cause, annoyance, issue an order to protect a party or person from embarrassment, oppression, or undue burden or expense, including one or more of the following: or the (A) forbidding discovery; disclosure (B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding into certain inquiry matters, or limiting the scope of disclosure or discovery to certain matters; (E) designating the persons who may be is the discovery present while conducted; (F) requiring that a deposition be sealed and opened only on court order; (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and that parties simultaneously specified documents or information in sealed envelopes, to be opened as the court directs. (H) requiring file the (2) Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery. (3) Awarding Expenses. RCFC 37(a)(5) applies to the award of expenses. (d) Timing and Sequence of Discovery. (1) Timing. A party may not seek discovery from any source before the parties have conferred as required by Appendix A ¶ 3, except in a proceeding exempted from RCFC initial 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order. disclosure under (2) Early Rule 34 Requests. (A)Time to Deliver. More than 21 days after the complaint is served on a party, a request under RCFC 34 may be delivered: (i) to that party by any other party; and (ii) by that party to any plaintiff or to any other party that has been served. (B) When Considered Served. The request is considered to have been served at the Early Meeting of Counsel (see Appendix A ¶ 3). (3) Sequence. Unless the parties stipulate or the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice: (A) methods of discovery may be used in any sequence; and (B) discovery by one party does not require any other party to delay its discovery. and to an responded Disclosures (e) Supplementing Responses. (1) In General. A party who has made a disclosure under RCFC 26(a)—or who has interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or 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; or (B) as ordered by the court. the party’s duty (2) Expert Witness. For an expert whose report must be disclosed under RCFC 26(a)(2)(B), to supplement extends both to information included in the report and to information given during the expert’s deposition. Any additions or changes to this information must be disclosed by the time the party’s pretrial disclosures under RCFC 26(a)(3) are due. (f) Conference of the Parties; Planning for Discovery. [Not used; see Appendix A ¶ 3.] Discovery (g) Signing Disclosures and Requests, Responses, and Objections. Effect (1) Signature of Required; Signature. Every disclosure under RCFC 43 RCFC 26 cont. state 26(a)(1) or Appendix A ¶¶ 13, 15, and 16, and every discovery request, response, or objection must be signed by the attorney of record in the attorney’s own name—or by the party personally, if unrepresented—and must the signer’s address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry: (A) with respect to a disclosure, it is complete and correct as of the time it is made; and (B) with respect to a discovery request, response, or objection, it is: (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for or extending, reversing existing law, or for establishing new law; modifying, (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome expensive, or considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action. (2) Failure to Sign. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney’s or party’s attention. (3) Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, RCFC 26 cont. 44 including attorney’s fees, caused by the violation. (As revised and reissued May 1, 2002; as amended Nov. 15, 2007, Nov. 3, 2008, July 15, 2011, July 2, 2012, Aug. 1, 2016.) Rules Committee Notes 2002 Revision RCFC 26 has been revised to parallel the structure and content of its counterpart in the FRCP. The limited number of changes to the current FRCP, as amended in 2000, reflect those deemed necessary to accommodate the nature and jurisdiction of this court. Except for these changes, the rule shown conforms fully to the text of FRCP 26. Because the Appendix A Early Meeting of Counsel substantially accomplishes the same purpose as the FRCP 26(f) Conference of Parties, the timing of initial disclosures was keyed to the former. Consequently, in lieu of the language of FRCP 26(f), cross reference is made to Appendix A ¶ 3. 2007 Amendment Rule 26 has been amended to reflect the changes to subdivisions (a) and (b) of FRCP 26 that became effective December 1, 2006. The changes to subdivision (f) of FRCP 26 that became effective December 1, 2006, were also adopted by the court but appear as changes to Appendix A ¶ 3. 2008 Amendment in the references In addition, The language of RCFC 26 has been amended to conform to the general restyling of the FRCP. former subparagraph (a)(1)(E) to the initial disclosure requirements after the Joint Preliminary Status Report have been changed in now-restyled subparagraphs (a)(1)(C) and (D) to “after the Early Meeting of Counsel” to reflect the corresponding event (the Rule 26(f) conference) identified in the federal rule. the filing of 2011 Amendment RCFC 26 has been amended in accordance with the corresponding changes to FRCP 26 that became effective December 1, 2010. 2012 Amendment RCFC 26(a)(2)(D) has been amended to conform to its FRCP counterpart. In particular, the time within which a party must disclose expert testimony has been tied to the date of trial rather than to the scheduled close of discovery. 2016 Amendment RCFC 26 has been amended in accordance with the corresponding changes to FRCP 26 that became effective December 1, 2015.