Rule 26 — Duty to Disclose; General Provisions Governing Discovery

Fed. R. Civ. P. 26

• Source: Federal Rules of Civil Procedure
• Rule: 26
• TITLE V: DISCLOSURES AND DISCOVERY
• Citation: Fed. R. Civ. P. 26

Text

(a) REQUIREDDISCLOSURES.

(1) Initial Disclosure.
(A) In General. Except as exempted by Rule 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 discoverable
information—along with the subjects of that informa-
tion—that the disclosing party may use to support its
claims or defenses, unless the use would be solely for
impeachment;
(ii) a copy—or a description by category and loca-
tion—of all documents, electronically stored informa-
tion, 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 Rule 34
the documents or other evidentiary material, unless
privileged or protected from disclosure, on which each
computation is based, including materials bearing on
the nature and extent of injuries suffered; and
(iv) for inspection and copying as under Rule 34, any
insurance agreement under which an insurance busi-
ness may be liable to satisfy all or part of a possible
judgment in the action or to indemnify or reimburse
for payments made to satisfy the judgment.
(B) Proceedings Exempt from Initial Disclosure. The follow-
ing proceedings are exempt from initial disclosure:
(i) an action for review on an administrative record;
(ii) a forfeiture action in rem arising from a federal
statute;
(iii) a petition for habeas corpus or any other pro-
ceeding to challenge a criminal conviction or sentence;
(iv) an action brought without an attorney by a per-
son in the custody of the United States, a state, or a
state subdivision;
(v) an action to enforce or quash an administrative
summons or subpoena;
(vi) an action by the United States to recover benefit
payments;
(vii) an action by the United States to collect on a
student loan guaranteed by the United States;
(viii) a proceeding ancillary to a proceeding in an-
other court; and
(ix) an action to enforce an arbitration award.
(C) Time for Initial Disclosures—In General. A party must
make the initial disclosures at or within 14 days after the
parties’ Rule 26(f) conference unless a different time is set
by stipulation or court order, or unless a party objects
during the conference that initial disclosures are not ap-
propriate in this action and states the objection in the
proposed discovery plan. 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 Rule 26(f) conference must make the ini-
tial disclosures within 30 days after being served or joined,
unless a different time is set by stipulation or court order.
(E) Basis for Initial Disclosure; Unacceptable Excuses. A
party must make its initial disclosures based on the infor-
mation then reasonably available to it. A party is not ex-
cused from making its disclosures because it has not fully
investigated the case or because it challenges the suffi-
ciency of another party’s disclosures or because another
party has not made its disclosures.
(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by
Rule 26(a)(1), a party must disclose to the other parties the
identity of any witness it may use at trial to present evi-
dence 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 disclo-
sure 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 in-
volve 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, including a list of
all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the pre-
vious 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 ex-
pected to present evidence under Federal Rule of Evi-
dence 702, 703, or 705; and
(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 dis-
closures 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
(a)(2)(B) or (C), within
30 days after the other party’s disclosure.
(E) Supplementing the Disclosure. The parties must supple-
ment these disclosures when required under Rule 26(e).
(3) Pretrial Disclosures.
(A) In General. In addition to the disclosures required by
Rule 26(a)(1) and (2), a party must provide to the other par-
ties and promptly file the following information about the
evidence that it may present at trial other than solely for
impeachment:
(i) the name and, if not previously provided, the ad-
dress and telephone number of each witness—sepa-
rately identifying those the party expects to present
and those it may call if the need arises;
(ii) the designation of those witnesses whose testi-
mony the party expects to present by deposition and,
if not taken stenographically, a transcript of the perti-
nent parts of the deposition; and
(iii) an identification of each document or other ex-
hibit, including summaries of other evidence—sepa-
rately identifying those items the party expects to
offer and those it may offer if the need arises.
(B) Time for Pretrial Disclosures; Objections. Unless the
court orders otherwise, these disclosures must be made at
least 30 days before trial. Within 14 days after they are
made, unless the court sets a different time, a party may
serve and promptly file a list of the following objections:
any objections to the use under Rule 32(a) of a deposition
designated by another party under Rule 26(a)(3)(A)(ii); and
any objection, together with the grounds for it, that may
be made to the admissibility of materials identified under
Rule 26(a)(3)(A)(iii). An objection not so made—except for
one under Federal Rule of Evidence 402 or 403—is waived
unless excused by the court for good cause.
(4) Form of Disclosures. Unless the court orders otherwise, all
disclosures under Rule 26(a) must be in writing, signed, and
served.
(b) DISCOVERYSCOPEANDLIMITS.
(1) Scope in General. Unless otherwise limited by court order,
the scope of discovery is as follows: Parties may obtain discov-
ery regarding 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 impor-
tance of 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.
(2) Limitations on Frequency and Extent.
(A) When Permitted. By order, the court may alter the
limits in these rules on the number of depositions and in-
terrogatories or on the length of depositions under Rule 30.
By order or local rule, the court may also limit the num-
ber of requests under Rule 36.

(B) Specific Limitations on Electronically Stored Informa-
tion. A party need not provide discovery of electronically
stored information from sources that the party identifies
as not reasonably accessible because of undue burden or
cost. On motion to compel discovery or for a protective
order, the party from whom discovery is sought must show
that the information is not reasonably accessible because
of undue burden or cost. If that showing is made, the court
may nonetheless order discovery from such sources if the
requesting party shows good cause, considering the limita-
tions of Rule 26(b)(2)(C). The court may specify conditions
for the discovery.
(C) When Required. On motion or on its own, the court
must limit the frequency or extent of discovery otherwise
allowed by these rules or by local rule if it determines
that:
(i) the discovery sought is unreasonably cumulative
or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or
less expensive;
(ii) the party seeking discovery has had ample oppor-
tunity to obtain the information by discovery in the
action; or
(iii) the proposed discovery is outside the scope per-
mitted by Rule 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 Rule 26(b)(4), those materials
may be discovered if:
(i) they are otherwise discoverable under Rule
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 dis-
covery of those materials, it must protect against disclo-
sure of the mental impressions, conclusions, opinions, or
legal theories of a party’s attorney or other representative
concerning the litigation.
(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 Rule 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 stenographic, mechanical,
electrical, or other recording—or a transcription of

it—that recites substantially verbatim the person’s
oral statement.
(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 at trial. If Rule
26(a)(2)(B) requires a report from the expert, the deposition
may be conducted only after the report is provided.
(B) Trial-Preparation Protection for Draft Reports or Disclo-
sures. Rules 26(b)(3)(A) and (B) protect drafts of any report
or disclosure required under Rule 26(a)(2), regardless of the
form in which the draft is recorded.
(C) Trial-Preparation Protection for Communications Be-
tween a Party’s Attorney and Expert Witnesses. Rules
26(b)(3)(A) and (B) protect communications between the
party’s attorney and any witness required to provide a re-
port under Rule 26(a)(2)(B), regardless of the form of the
communications, except to the extent that the commu-
nications:
(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
opinions 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) Expert Employed Only for Trial Preparation. Ordi-
narily, 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 Rule 35(b); or
(ii) on showing 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 discovery under Rule 26(b)(4)(A) or (D);
and
(ii) for discovery under (D), also pay the other party
a fair portion of the fees and expenses it reasonably in-
curred in obtaining the expert’s facts and opinions.
(5) Claiming Privilege or Protecting Trial-Preparation Materials.
(A) Information Withheld. When a party withholds infor-
mation otherwise discoverable by claiming that the infor-
mation is privileged or subject to protection as trial-prep-
aration material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, commu-
nications, or tangible things not produced or dis-
closed—and do so in a manner that, without revealing

information itself privileged or protected, will enable
other parties to assess the claim.
(B) Information Produced. If information produced in dis-
covery is subject to a claim of privilege or of protection as
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 party
must promptly return, sequester, or destroy the specified
information and any copies it has; must not use or disclose
the information until the claim is resolved; must take rea-
sonable steps to retrieve the information if the party dis-
closed it before being notified; and may promptly present
the information to the court under seal for a determina-
tion of the claim. The producing party must preserve the
information until the claim is resolved.
(c) PROTECTIVEORDERS.
(1) In General. A party or any person from whom discovery
is sought may move for a protective order in the court where
the action is pending—or as an alternative on matters relating
to a deposition, in the court for the district where the deposi-
tion will be taken. 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,
issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, in-
cluding one or more of the following:
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place or the al-
location of expenses, for the disclosure or discovery;
(C) prescribing a discovery method other than the one
selected by the party seeking discovery;
(D) forbidding inquiry into certain matters, or limiting
the scope of disclosure or discovery to certain matters;
(E) designating the persons who may be present while
the discovery is conducted;
(F) requiring that a deposition be sealed and opened only
on court order;
(G) requiring that a trade secret or other confidential re-
search, development, or commercial information not be re-
vealed or be revealed only in a specified way; and
(H) requiring that the parties simultaneously file speci-
fied documents or information in sealed envelopes, to be
opened as the court directs.
(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. Rule 37(a)(5) applies to the award of
expenses.
(d) TIMINGANDSEQUENCEOFDISCOVERY.
(1) Timing. A party may not seek discovery from any source
before the parties have conferred as required by Rule 26(f), ex-
cept in a proceeding exempted from initial disclosure under
Rule 26(a)(1)(B), or when authorized by these rules, by stipula-
tion, or by court order.

(2) Early Rule 34 Requests.
(A) Time to Deliver. More than 21 days after the summons
and complaint are served on a party, a request under Rule
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 first Rule 26(f) conference.
(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.
(e) SUPPLEMENTINGDISCLOSURESANDRESPONSES.
(1) In General. A party who has made a disclosure under Rule
26(a)—or who has responded to an interrogatory, request for
production, or request for admission—must supplement or cor-
rect 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 informa-
tion has not otherwise been made known to the other par-
ties during the discovery process or in writing; or
(B) as ordered by the court.
(2) Expert Witness. For an expert whose report must be dis-
closed under Rule 26(a)(2)(B), the party’s duty to supplement
extends both to information included in the report and to in-
formation 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 Rule 26(a)(3) are due.
(f) CONFERENCEOFTHEPARTIES; PLANNINGFORDISCOVERY.
(1) Conference Timing. Except in a proceeding exempted from
initial disclosure under Rule 26(a)(1)(B) or when the court or-
ders otherwise, the parties must confer as soon as prac-
ticable—and in any event at least 21 days before a scheduling
conference is to be held or a scheduling order is due under
Rule 16(b).
(2) Conference Content; Parties’ Responsibilities. In conferring,
the parties must consider the nature and basis of their claims
and defenses and the possibilities for promptly settling or re-
solving the case; make or arrange for the disclosures required
by Rule 26(a)(1); discuss any issues about preserving discover-
able information; and develop a proposed discovery plan. The
attorneys of record and all unrepresented parties that have ap-
peared in the case are jointly responsible for arranging the
conference, for attempting in good faith to agree on the pro-
posed discovery plan, and for submitting to the court within
14 days after the conference a written report outlining the
plan. The court may order the parties or attorneys to attend
the conference in person.
(3) Discovery Plan. A discovery plan must state the parties’
views and proposals on:

(A) what changes should be made in the timing, form, or
requirement for disclosures under Rule 26(a), including a
statement of when initial disclosures were made or will be
made;
(B) the subjects on which discovery may be needed, when
discovery should be completed, and whether discovery
should be conducted in phases or be limited to or focused
on particular issues;
(C) any issues about disclosure, discovery, or preserva-
tion of electronically stored information, including the
form or forms in which it should be produced;
(D) any issues about claims of privilege or of protection
as trial-preparation materials, including—if the parties
agree on a procedure to assert these claims after produc-
tion—whether to ask the court to include their agreement
in an order under Federal Rule of Evidence 502;
(E) what changes should be made in the limitations on
discovery imposed under these rules or by local rule, and
what other limitations should be imposed; and
(F) any other orders that the court should issue under
Rule 26(c) or under Rule 16(b) and (c).
(4) Expedited Schedule. If necessary to comply with its expe-
dited schedule for Rule 16(b) conferences, a court may by local
rule:
(A) require the parties’ conference to occur less than 21
days before the scheduling conference is held or a schedul-
ing order is due under Rule 16(b); and
(B) require the written report outlining the discovery
plan to be filed less than 14 days after the parties’ con-
ference, or excuse the parties from submitting a written
report and permit them to report orally on their discovery
plan at the Rule 16(b) conference.
(g) SIGNING DISCLOSURES AND DISCOVERY REQUESTS, RESPONSES,
ANDOBJECTIONS.
(1) Signature Required; Effect of Signature. Every disclosure
under Rule 26(a)(1) or (a)(3) and every discovery request, re-
sponse, or objection must be signed by at least one attorney
of record in the attorney’s own name—or by the party person-
ally, if unrepresented—and must state 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 cor-
rect as of the time it is made; and
(B) with respect to a discovery request, response, or ob-
jection, it is:
(i) consistent with these rules and warranted by ex-
isting law or by a nonfrivolous argument for extend-
ing, modifying, or reversing existing law, or for estab-
lishing new law;
(ii) not interposed for any improper purpose, such as
to harass, cause unnecessary delay, or needlessly in-
crease the cost of litigation; and

(iii) neither unreasonable nor unduly burdensome or
expensive, considering the needs of the case, prior dis-
covery 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 attor-
ney’s or party’s attention.
(3) Sanction for Improper Certification. If a certification vio-
lates 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, including attorney’s fees, caused by the violation.

Advisory Committee Notes

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007; Apr. 28, 2010, eff. Dec. 1, 2010; Apr. 29, 2015, eff. Dec. 1, 2015.)