Rule 35 - Physical and Mental Examinations(a) Right to Request a Physical or Mental Examination.A party may request that a physician or psychologist perform a physical or mental examination of another party, or a person who is in another party's custody or under its legal control, when that party or person's physical or mental condition is in controversy.
(b)Attendance of Representative. The party or person to be examined may have a representative present during the examination unless the presence of the representative may adversely affect the examination's outcome. (c)Recording. Any party may audio-record or video-record an examination, unless the recording may adversely affect the examination's outcome. The person recording the examination may be a different person from the representative described in Rule 35(b). A copy of the recording of an examination must be provided to any party upon request. (d)Notice.(1)By a Party Requesting an Examination.A party requesting an examination must serve a written notice on all other parties no fewer than 30 days before the examination. The notice must specify: (A) the identity of the person to be examined;(B) the time, place, manner, conditions, and scope of the examination; (C) the identity of the person or persons who will perform the examination; and(D) if the examination is to be recorded, the method of recording and the identity of the person or entity that will make the recording.(2)By the Party or the Person to Be Examined Wanting to Have a Representative Present at an Examination. If the party or the person to be examined wants to have a representative present at an examination, they must serve a written notice on all other parties no fewer 15 days before the examination stating the name of the representative and the representative's relationship to the party or person to be examined.(3)By a Party (Other than the Requesting Party), or the Person to Be Examined, Wanting to Record an Examination. If a party (other than the requesting party) or the person to be examined wants to record an examination, they must serve written notice on all other parties no fewer than 15 days before the examination stating the method of recording and the identity of the person or entity that will make the recording.(e)Objections. Subject to Rule 26(d), any party or the person to be examined may object to the examination itself; the time, place, manner conditions, and scope of the examination; the person who will perform the examination; the presence of a representative; or the method of recording by filing a motion with the court where the action is pending under Rule 26(c).(f)Orders. Upon a showing of good cause, the court where the action is pending may order the examination to proceed as specified in the notice provided under Rule 35(d), or that the examination be conducted by an examiner in a manner or under conditions other than as specified in such notice (g)Failure to Appear. Unless a party or the person to be examined has filed an objection under Rule 35(e), if the party or person to be examined fails to attend an examination as noticed or ordered, the court where the action is pending may make such orders concerning the failure as are just, including those under Rule 37(b)(2)(B).(h) Examiner's Report and Materials; Waiver of Privilege; Scope.(1)Request by the Party or Person Examined.If requested by the party or person to be examined, within 20 days of the examination: (A) the examiner must prepare, and the party requesting the examination must produce, a written report that sets out in detail the examiner's findings, including diagnoses, conclusions, and the results of any tests of the person examined;(B) the party requesting the examination must produce any written or recorded materials prepared by the examiner of the person examined in connection with the examination; and(C) the party requesting the examination must produce like reports of all earlier examinations of the person examined involving the same condition.(2)Request by the Examining Party. After producing the materials required by Rule 35(h)(1)(C), the party requesting the examination is entitled, on its request, to receive from the party who was examined-or who produced the person examined-like reports of all earlier or later examinations of the person examined involving the same condition. But those reports do not need to be produced by the party with custody or control of the person examined if the party shows that it could not obtain them.(3)Waiver of Privilege. By requesting and obtaining the examiner's report, or by deposing the examiner, the party or person examined waives any privilege they may have-in that action or any other action involving the same controversy-concerning testimony by any other person who has examined or who later examines the same condition.(4)Scope. This Rule 35(h) applies to examinations conducted by agreement of the parties, unless the agreement states otherwise. It does not preclude a party from obtaining an examiner's report, or deposing an examiner, under other rules.Amended effective 1/1/2017; amended August 31, 2017, effective 7/1/2018; amended August 24, 2023, effective 1/1/2024.