Me. R. Civ. P. 26
A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.
Communications between the party's attorney and any testifying expert witness not meeting one or more of the above three criteria may be obtained in discovery 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.
If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.
Me. R. Civ. P. 26
Advisory Note - June 2014
Subdivision (b)(4)(A)(i) is amended to make it clear that the use of interrogatories in expert discovery is an option if the court has not issued a scheduling order requiring expert disclosures and Rule 26(b)(4) information. Interrogatories are not mandatory under the Rule, nor are they the sole means for obtaining discovery of an expert.
The addition of the new subdivision (b)(4)(C) regarding communications between a party's attorney and testifying expert witnesses was prompted by similar changes to the Federal Rule, protecting draft expert disclosures and reports and certain other communications as work product. Under the State Rule and practice, there was no similar protection. The Committee debated the merits of allowing freer communications between lawyers and their experts without fear of discovery and the countervailing concerns that protecting those communications limits the ability of opposing counsel to conduct meaningful cross-examination. The amended protective Rule and its exceptions attempt to strike a reasonable balance, obviating the cumbersome and artificial practice of communicating with experts only orally while ensuring that communications important for cross-examining experts remain discoverable. Because the amendment protects only communications between the lawyer and her expert, anything else that is otherwise discoverable remains discoverable. The facts observed, the information learned, and the opinions reached by the expert are not protected from discovery simply because they are shared with the attorney. Changes in the expert's opinions are discoverable regardless of the fact that those changes were conveyed to the attorney, but the communications between the expert and the attorney about those changes are protected unless they meet one of the three exceptions.
Former subdivision (b)(4)(C) is now subdivision (b)(4)(D).
Advisory Note - July 2012
This change is for the benefit of the clerks' offices and is designed to eliminate unnecessary paper accumulations in the official file. The requirement that notifications including method and date of discovery be served with the discovery documents allows for ease of reference by the parties.
Advisory Committee Notes
December 2010
Rule 26(b)(4)(A)(ii) has been modified to allow the deposition of a party's retained expert as a matter of course, rather than on motion, consistent with common discovery practice in civil cases. This is also consistent with practice in Federal Court.
Rule 26(b)(4)(C) is amended to state more clearly the responsibility of a party seeking discovery to pay the expert's reasonable fee for time spent in a deposition. The amendment clarifies that the time for which compensation is to be paid is the time at the deposition. The Rule continues to allow parties to move the court for additional expert fees or expenses, if appropriate, upon a showing of good cause.
Advisory Committee Note - July 2008
Rule 26(b)(5)(B) is adopted to govern the inadvertent production of privileged or trial preparation material. Subdivision (b)(6) is adopted to regulate the discovery of "electronically stored information" where the production of such information would cause undue burden and expense. The term "electronically stored information" as used now in the Maine Rules of Civil Procedure is intended to have the same broad meaning set forth in Rule 34(a), which permits discovery of electronically stored information regardless of the medium in which the information is stored or the method by which it is retrieved. These amendments are part of amendments to Rules 16, 26, 33, 34 and 37 to address the discovery of electronically stored information. The amendments are generally taken from the 2006 amendments to the Federal Rules of Civil Procedure governing electronic discovery. The Advisory Committee's Notes to the federal amendments are instructive and should guide the interpretation of the Maine amendments.
The amendment to Rule 26(b)(5)(B) recognizes that in discovery, especially in the production of a large volume of electronically stored information, privileged information or trial preparation material may inadvertently be produced. In this context, the term "privilege" includes material or information that is confidential and protected from disclosure in discovery, whether by statute, privilege or otherwise. Under the amendments, if a party has inadvertently produced documents or information that is subject to a claim of privilege or protection as trial preparation material, the party making the claim must notify the receiving parties of the claim and the basis for it. After notification, the receiving party may not use or disclose the documents or information until the claim is resolved. The receiving party may, at its option, return, sequester or destroy the information, together with any copies it has made or disseminated. If the receiving party disputes the claim of privilege, the receiving party may properly present the information to the court under seal and request a determination of the claim under Rule 26(g). Since information may have been delivered to expert witnesses or other persons involved in the case, the receiving party must also "take reasonable steps to retrieve" the information. Throughout this process and until the claim is determined, the producing party must preserve the information so that it is available to the court. These requirements are generally consistent with the Law Court's holding in Corey v. Norman Hanson & DeTroy, 1999 ME196, ¶ 19, 742 A.2d 933, 941, especially in its teaching that an inadvertent production does not, without more, automatically waive a privilege.
The intent of the amendment is to recognize that given tight discovery schedules and the volume of electronically stored or other information produced, a producing party may not have identified every document on which a claim of privilege may be appropriate. The amendment provides a procedure by which the producing party may notify other parties of a claim of privilege, stop the use of the information, and have the issue promptly determined. By its terms, the rule applies only where the production has been truly "inadvertent," and it is not intended to be used where information was knowingly produced and because of a change of tactics or circumstances, the privilege is belatedly asserted. Of course, the amendment to Rule 26(b)(5)(B) as a rule of procedure does not create any substantive law concerning privilege, trial preparation material or waiver of these protections.
Rule 26(b)(6) is also adopted to make clear that a party need not provide discovery of electronically stored information if that information is not "reasonably accessible because of undue burden or expense." The rule is taken from its federal counterpart, with an adaption to Maine practice by referring to Rule 26(c) and using the term "expense" in Rule 26(c) rather than "cost" in the federal rule. No substantive difference is intended. The new subdivision implements the commonsense principle that discovery is not unlimited.
If electronically stored information cannot be retrieved or translated into reasonably usable form without "undue burden or expense," the producing party must identify that fact to the requesting party. If an application is made to produce the information under Rule 26(g), the party resisting discovery bears the initial burden to show the court that the information is not, in fact, "reasonably accessible because of undue burden or expense." The requesting party must then show "good cause" why the information should be produced notwithstanding the burden and expense. The court then considers whether the showings required by the rule have been made and it has broad discretion and remedial powers in addressing the issue. If the information can be reasonably produced, even if there is some burden or cost that is not "undue," production should simply be ordered as routine discovery. On the other hand, if the producing party meets its burden and the requesting party cannot show good cause for the production, no production is to be ordered. If the showings have been made, the court may still consider whether production should be required under the circumstances. If production is required, the court should consider, as Rule 26(c) contemplates, the extent of the production and what conditions the court may order to eliminate or mitigate "undue burden or expense." Assuming some "undue burden or expense" remains, however, the rule, unlike its federal counterpart, mandates that the requesting party pay the reasonable expense of that production.
Advisory Notes - 2004
Rule 26(g)(1) & (2) are amended to state the court's authority to utilize video and telephone conferencing options.
Annotations:
Rule 26(b)(3): Springfield Railway Co. v. Dept. of Transportation, 2000 ME 126, 13-19.
Rule 26(b)(4)(A): Expert designations timeliness. Johnson v. Carleton, 2001 ME 12, 7-10.
Advisory Note -January 1, 2003
The purpose of the amendment to M.R. Civ. P. 26(b)(4)(A)(i) is to exempt treating physicians from providing information on qualifications, publications and compensation. In practice such information has proven difficult to obtain from treating physicians with busy practices and varying billing rates, and the need for such information is less for treating physicians than for experts retained for case-related purposes.
Advisory Committee Note
The adoption of M.R. Civ. P. 26(b)(5) is intended to provide a procedure for identifying information or material withheld under a claim of privilege or work product. The provision is a verbatim adoption of its federal counterpart, Fed. R. Civ. P. 26(b)(5)(A).
Present practice frequently is for the withholding party simply to invoke the privilege in an objection to the discovery, leaving the requesting party no basis on which to evaluate whether the privilege is properly invoked. In response, the requesting party occasionally demands a "privilege log" so detailed that the protection of afforded by the privilege is lost. In either case, the court has no basis on which to resolve the dispute efficiently. The purpose of the rule is not to create a burdensome duty to provide a detailed list of documents or information withheld. The intent of the rule is to require a general description of what is withheld so that the requesting party can decide whether to contest the claim and the court has some basis on which to resolve the dispute. Obviously, the court in resolving the issue may require more detail or an in camera inspection, but the rule should obviate some disputes entirely and provide a basis for resolving most disputes if they require judicial intervention.
Advisory Committee's Notes May 1, 1999
There are three amendments to Rule 26. In Rule 26(a), the former last sentence of the subdivision, specifying that the frequency of use of discovery methods was not limited, has been deleted. Given the specificity of the other discovery rules, the provision became superfluous.
New language is added to Rule 26(b)(4)(A)(i) to expand the information required to be produced in the designation of expert witnesses. Under the amendment, a party is required to identify information and exhibits used by the expert to form or support opinions, and to set forth the qualifications, compensation, and publications of the expert. The intent of the amendment is to catalogue information that is now routinely requested by opposing parties and routinely allowed by the court. Although the rule still states that a party may obtain this information "through interrogatories," as a practical matter, the automatic disclosure provisions of the scheduling order will require production of this information as a matter of course. It is the intent of the rule that a full, good faith disclosure be made to avoid issues concerning expert testimony arising for the first time at trial.
Advisory Committee's Notes May 1, 1999 (Second)
Subdivision (g) has been abrogated and replaced. Although a good faith discovery conference is required to resolve disputes by agreement, the rule prohibits written discovery motions unless otherwise ordered by the court. Discovery disputes will now be resolved by telephone or personal conference or hearing of a justice or judge of the court in which the action is pending. The purpose of the amendment is to provide a swift, inexpensive means for judicial intervention to resolve discovery disputes and to keep the case moving forward according to the original deadlines entered by the scheduling order. Most discovery issues can be quickly and efficiently resolved by a judicial officer without the necessity of written motions and memoranda.
In order to initiate the new process, the party requesting court action simply contacts the appropriate clerk by letter or, in exigent circumstances, by telephone or in person. The request itself constitutes a representation to the court, subject to the sanction of Rule 11, that the issue remains unresolved after a discovery conference had been conducted in good faith. The clerk then sets up a time for the hearing or conference with the court and informs the moving party, who is responsible for notifying all other parties and for initiating any telephone conference.
The hearing or conference is intended to be as informal as the process of requesting it. It is the moving party's obligation to provide an unargumentative letter to the court describing the dispute succinctly and enclosing the discovery requests and responses at issue. No written argument is to be submitted and no other papers are to be filed with the clerk without prior leave of the court. The letter and the materials are intended simply as a guide to the court in the resolution of the dispute.
The rule explicitly gives the justice or judge conducting the hearing the authority to make "such orders at the hearing as are necessary to resolve the dispute." The orders are to be reduced to writing and constitute "orders" for the purposes of sanctions under Rule 37. If it appears that the nature of the dispute is such that the court would find written submissions helpful, the court may order the parties to file written motions and supporting memoranda on some or all of the issues. The process is intended to be swift, practical, inexpensive and flexible.
Advisory Committee's Notes February 15, 1996
Rule 26(f) is amended to make clear that miniaturized deposition transcripts may be served and filed as provided in the simultaneous amendment of Rule 5(f).
Advisory Committee's Notes 1992
Rule 26(g) is added. The provision is adapted from Local Rule 16(e) of the United States District Court for the District of Maine. Its purpose is to reduce the number of contested discovery motions by requiring the moving party to make a good faith effort to confer with opposing counsel prior to filing a motion and to certify that the conference has occurred or that it was not held for stated reasons.
Advisory Committee's Notes 1985
Rule 26(f) is added to eliminate the requirement of filing discovery materials with the Court unless otherwise ordered, or unless the material is to be used in the proceeding. See also simultaneous amendments of M.R. Civ. P. 5(d) and 30(f)(1) and additions of Form 17. The amendment is applicable in the District Court by virtue of its incorporation in M.D.C. Civ. R. 26.
The rule is taken from Rule 16(d), (g) of the Rules of the United States District Court for the District of Maine and from F.R. Civ. P. 5(d), upon which the local rule is based. The new rule is deemed necessary because currently the filing of large volumes of interrogatory requests and responses and deposition transcripts poses a significant problem for Superior Court clerk's offices. Further, including discovery in court files makes those files much more difficult to review. The party initiating the discovery should file Official Form 17, added by simultaneous amendment, to provide information from which the clerk may docket the service to provide entries that stop the running of the two-year period of Rule 41(b).
Under paragraph (1) of the new rule, discovery materials are to be retained by the party serving notice of a deposition or otherwise initiating discovery for a period of two years after final judgment. Note that, in the event of an appeal, the final judgment referred to is that entered after disposition of the appeal. The burden remains upon the party who would use a deposition as evidence under Rule 32(a), or use other discovery materials as part of the record, to obtain the original or appropriate copies from the party having custody for appropriate filing. The duty to preserve the integrity of the materials is a matter of professional responsibility on the part of the lawyer having custody.
Paragraph (2), taken from D. Me. D.R. 16(g), provides the procedure for filing when discovery material is to be used at trial and makes plain that, to assure that the full context is available, the complete deposition or other matter must be filed.