Ariz. R. Civ. P. 26
State Bar Committee Note
1984 Amendments to Rule 26(a) and (b)
The 1984 amendments to Rule 26 are aimed at preventing both excess discovery and evasion of reasonable discovery devices. Deletion of "the frequency of use" from Rule 26(a) is intended to deal directly with the problems of duplicative and needless discovery. This change and others in Rule 26(b) should encourage judges to identify instances of unnecessary discovery and to limit the use of the various discovery devices accordingly.
New standards are added in Rule 26(b)(1) which courts will use in deciding whether to limit the frequency or extent of use of the various discovery methods. Subdivision (i) is intended to reduce redundancy in discovery and require counsel to be sensitive to the comparative costs of different methods of securing information. Subdivision (ii) also seeks to minimize repetitiveness and to oblige lawyers to think through their discovery activities in advance so that full utilization is made of each deposition, document request, or set of interrogatories. Subdivision (iii) addresses the problem of discovery that is disproportionate to the individual lawsuit as measured by various factors, e.g., its nature and complexity, the importance of the issues at stake, the financial position of the parties, etc. These standards must be applied in an even-handed manner to prevent use of discovery to wage a war of attrition or as a device to coerce a party, whether affluent or financially weak.
Acknowledging that discovery cannot always be self-regulating, the Rule contemplates earlier and greater judicial involvement in the discovery process. The court may act on motion or its own initiative.
1991 Amendment to Rule 26(b)(4)
The amendment to Rule 26(b)(4) must be read in conjunction with the amendment to [former Rule 43(g) ]. The purpose of these two rules is to avoid unnecessary costs inherent in the retention of multiple independent expert witnesses. The words "independent expert" in this rule refer to a person who will offer opinion evidence who is retained for testimonial purposes and who is not a witness to the facts giving rise to the action. As used in this rule, the word "presumptively" is intended to mean that an additional expert on an issue can be used only upon a showing of good cause. Where an issue cuts across several professional disciplines, the court should be liberal in allowing expansion of the limitation upon experts established in the rule.
[Former Rule 43(g) ] is intended to reinforce Rule 403 of the Arizona Rules of Evidence which gives the court discretion to exclude relevant evidence which represents ... "needless presentation of cumulative evidence." By use of the word "shall" in [former Rule 43(g) ] it is the intent of the Committee to strongly urge trial judges to exclude testimony from independent experts on both sides which is cumulative except in those circumstances where the cause of justice requires.
There is no intent to preclude witnesses who in addition to their opinion testimony are factual witnesses. Under [former Rule 43(g) ], however, the court would exclude an independent expert witness whose opinion would simply duplicate that of the factual expert witness, except for good cause shown.
This amendment to Rule 26(b)(4) in combination with [former Rule 43(g) ] and [Rules 16(d)(5) and 16(e)(4) (formerly Rule 16(c)(3) )] is intended to discourage the unnecessary retention of multiple independent expert witnesses and the discovery costs associated with listing multiple cumulative independent experts as witnesses. The Committee does not intend any change in the present rule regarding specially retained experts.
State Bar Committee Note
2000 Amendments to Rule 26(b) and (c)
As part of the effort to consolidate formerly separate sets of procedural rules into either the Arizona Rules of Civil Procedure or the Rules of the Arizona Supreme Court, the Uniform Rules of Practice of the Superior Court were effectively transferred to one or the other of those existing sets of Rules. The provisions of former Rule V(a) of the Uniform Rules of Practice of the Superior Court, which required the filing, in certain counties, of a list of witnesses and exhibits as a predicate for submitting a Motion to Set and Certificate of Readiness, however, were not retained in that process. The Committee was of the view that this requirement had been rendered obsolete by the provisions of Rule 26.1, which requires the voluntary and seasonable disclosure of, inter alia, the identities of trial witnesses and exhibits. This necessitated the amendment of Rule 26(b)(5) to eliminate the former reference to Rule V(a) and to substitute in its place a reference to new Rule 38.1(b)(2) of the Arizona Rules of Civil Procedure.
Rule 26(b)(4) was amended to incorporate, as a new separate paragraph, the provisions of former Rule 1(D)(4) of the Uniform Rules of Practice for Medical Malpractice Cases. The Comment to that former Rule had observed that, if a medical malpractice case involved issues of nursing care, anesthesia, and general surgery, the plaintiff should be entitled to three standard-of- care experts and, similarly, if the hospital employed the nurse, anesthesiologist and surgeon and was the sole defendant, it would also be entitled to three standard-of-care experts. The addition of the phrase "except upon a showing of good cause" merely incorporates the standards of former Rule 43(g), which addressed the same subject and was abrogated as unnecessary. Finally, the provisions of Rule 26(e) were amended to reflect prior amendments to Rules 26.1 and 37 which require the disclosure of such information by no later than sixty (60) days prior to trial, without leave of court.
2002 Amendment to Rule 26(c)
The amendment to Rule 26(c) does not limit the discretion of trial judges to issue confidentiality orders in the appropriate case. Trial judges should look to federal case law to determine what factors, including the three listed in the rule, should be weighed in deciding whether to grant or modify a confidentiality order where parties contest the need for such an order. Trial judges also should look to federal case law to determine whether to permit nonparties to intervene and obtain access to information protected by such orders.