Vt. 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.
If the motion for a protective order is denied in whole or in part, the judge 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.
Each party and each party's attorney is under a duty to participate in good faith in the framing of a discovery plan if a plan is proposed by the attorney for any party. Notice of the motion shall be served on all parties. Objections or additions to matters set forth in the motion shall be filed not later than 14 days after service of the motion.
Following the discovery conference, the court shall enter an order tentatively identifying the issues for discovery purposes, including any issues about preserving discoverable information, any issues about discovery of electronically stored information including the form or forms in which it should be produced, and any issues about claims of privilege or protection as trial-preparation materials; establishing a plan and schedule for discovery; setting limitations on discovery, if any; and determining such other matters, including the allocation of expenses, as are necessary for the proper management of discovery in the action. An order may be altered or amended whenever justice so requires.
Subject to the right of a party who properly moves for a discovery conference to prompt convening of the conference, the court may combine the discovery conference with a pretrial conference authorized by Rule 16.
If without substantial justification a certification is made in violation of the rule, the court, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney's fee.
No motions pursuant to Rules 26 and 37 shall be filed unless counsel making the motion has conferred with opposing counsel or has attempted to confer about the discovery issues between them in detail in a good faith effort to eliminate or reduce the area of controversy, and to arrive at a mutually satisfactory resolution. In the event the consultations of counsel do not fully resolve the discovery issues, counsel making a discovery motion shall file with the court, as part of his or her motion papers, an affidavit or a certificate of a party's attorney subject to the obligations of Rule 11 certifying that he or she has conferred or has attempted to confer with counsel for the opposing party in an effort in good faith to resolve by agreement the issues raised by the motion without the intervention of the court, and has been unable to reach such an agreement. If some of the issues raised by the motion have been resolved by agreement, the affidavit shall specify the issues so resolved and the issues remaining unresolved and the reasons therefor. The affidavit shall set forth the date or dates of the consultation with opposing counsel, and the names of the participants.
Except when the motion is based solely upon the failures described in Rule 37(d), memoranda with respect to any discovery motion shall contain a concise statement of the nature of the case and a specific verbatim listing of each of the items of discovery sought or opposed, and immediately following each specification shall set forth the reason why the item should be allowed or disallowed.
Vt. R. Civ. P. 26
Reporter's Notes-2022 Amendment
Rule 26(e) is amended to conform more nearly to Federal Rule 26(e).
In the first sentence of V.R.C.P. 26(e), "that was complete when made" is deleted to fully eradicate the suggestion that supplementation is required only for information that is a departure from a formerly complete disclosure. Federal Rule 26(e)(1) was clarified in 1993 to eliminate this possible interpretation, by adding that there is a duty both to supplement and to correct. V.R.C.P. 26(e) was amended to reflect the federal rule change in 1996. However, the Federal Rule was further clarified in 2007 by deletion of the words "thereafter acquired" from the first sentence of the rule. This change eliminated any interpretation of the rule that the duty to correct or supplement did not arise if information available to the disclosing party at the time of the initial disclosure rendered the initial disclosure incomplete or inaccurate. V.R.C.P. 26(e) as amended now follows Federal Rule 26(e) by also deleting "thereafter acquired." See 8A Wright & Miller, Federal Practice and Procedure § 2049.1 (3d ed.).
In the first sentence of V.R.C.P. 26(e), "in a timely manner" is also added, consistent with F.R.C.P. 26(e)(1)(A), to address a matter on which the existing Vermont Rule was silent by incorporating a common-sense rule of reasonableness. This amendment to the V.R.C.P. 26(e) differs in one respect from F.R.C.P. 26(e). Amended V.R.C.P. 26(e) requires disclosure in a timely manner of all discovery for which there is a duty to supplement. F.R.C.P. 26(e)(2) carves out an exception for supplementation of expert disclosures and deposition testimony, requiring only that the supplementation occur no later than the deadline for mandatory pretrial disclosures, such as the disclosures of witnesses to be called at trial and documents to be used at trial. F.R.C.P. 26(a)(3)(B) requires that such pretrial disclosures be made no later than 30 days prior to commencement of trial. V.R.C.P. 26 does not contain the carve-out because Vermont's discovery rules do not include a provision for pretrial disclosures. Moreover, experience in Vermont with civil trials reveals that the overwhelming majority of civil matters settle prior to trial, often during mediation. In order for the discovery process to fairly and accurately prepare parties for settlement discussions and mediation, timely supplementation of disclosures about and by expert witnesses is needed.
The present amendment also adds V.R.C.P. 26(e)(4) regarding supplementation of expert disclosures and expert depositions. The amended rule requires supplementation of disclosure of information provided about expert witnesses pursuant to Rule 26(b)(5)(A)(i) or by expert witnesses when deposed. This change brings the V.R.C.P. 26(e) into conformity with the federal rule change that was adopted in 1993.
Reporter's Notes-2020 Amendment
Rule 26(c)(2) is amended by the addition of the phrase, "for the discovery or disclosure," for uniformity with the language of Federal Rule of Civil Procedure 26(c)(1)(B). Although, unlike the Federal Rule, disclosure is not mandatory under V.R.C.P. 26, the term is included because a scheduling order could require a disclosure.
Rule 26(b)(5)(A)(i) is amended to adapt the language of F.R.C.P. 26(a)(2)(A) for the provision of the Vermont Rule identifying expert witnesses whose identity must be disclosed in response to an interrogatory. The amended rule applies to "each person" who may be used at trial to present expert testimony under Vermont Rules of Evidence 702, 703, and 705. To remove uncertainty regarding whether this requirement applies to witnesses whose testimony falls within those Evidence Rules but who were not specially retained to develop their opinions, the present amendment makes clear that Rule 26(b)(5) applies "whether or not the witness may also testify from personal knowledge as to any fact in issue in the case."
The amended rule changes prior practice as exemplified by Hutchins v. Fletcher Allen Health Care. Inc.. 172 Vt. 580, 582, 776 A.2d 376, 379 (2001) (mem.), where the Court interpreted an earlier version of V.R.C.P. 26(b)(5)(A)(i) to allow defendant's expert witnesses who, as treating physicians, were also fact witnesses to be treated as ordinary witnesses not subject to those disclosure requirements. The continued effect of that decision is weakened by Stella v. Spaulding, 2013 VT 8, % 17, 193 Vt. 226, 67 A.3d 247 (without objection, expert disclosure requirements applied to plaintiffs nonparty primary care provider, despite dissent's suggestion that Hutchins should apply).
This change is intended to further the purpose set forth in Rule 1 of the Vermont Rules of Civil Procedure "to secure the just, speedy, and inexpensive determination of every action." Like other provisions of the Vermont Rules governing discovery of experts, the present amendment ensures fair notice to litigants of an expert's testimony, enabling litigants to decide whether it is necessary to depose the expert and to otherwise prepare for the trial on scientific, technical, or other specialized issues. See, e.g. Stella, 2013 VT 8; Greene v.Bell. 171 Vt. 280, 283-84, 762 A.2d 865, 869 (2000). The goal of fairness and prevention of surprise requires disclosure of all expert opinion.
The term "expert" as used in Rule 26(b)(5)(A)(i) and throughout Rule 26(b)(5) refers to any witness who, as provided in Rule 702, is "qualified as an expert by knowledge, skill, experience, training, or education" and whose opinion or other testimony based on "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Rule 702 further provides that the testimony must be "based upon sufficient facts or data" and "the product of reliable principles and methods," and those principles and methods must be "applied . . . reliably to the facts of the case."
Thanks to the liberality of Rule 702, witnesses with expertise in a wide variety of fields are now commonly used in civil and other litigation. Extension of the disclosure requirement to witnesses with expert qualifications who also have personal knowledge of factual matters in issue reflects the practical reality that such "fact" witnesses will invariably be called at trial, and their expertise will necessarily inform their testimony. Thus, their expertise and the bases of their opinions should be routinely disclosed.
When the Vermont Rules of Civil Procedure were adopted in 1971, disclosure, as under the Federal Rules, was limited to witnesses whose opinions were formed "in anticipation of litigation or for trial." As the original Reporter's Notes to V.R.C.P. 26 stated, "An expert whose knowledge or opinions are relevant because of his participation in the events giving rise to suit should be treated for discovery purposes as an ordinary witness." This language was the basis of the decision in Hutchins. 172 Vt. at 582, 776 A.2d at 379.
The requirement that all opinion testimony under Rules of Evidence 702, 703, or 705 must be disclosed, regardless of whether it was formed in anticipation of litigation or trial was added to the Federal Rule in 1993. However, V.R.C.P. 26(b)(5) was amended only to delete the "anticipation of litigation" limitation and thus to require disclosure of each person whom the other party expects to call as an "expert witness" without qualification or clarification. Since neither the language relied on in Hutchins, nor the 1993 Federal Rule language is in the current Vermont rule, uncertainty and inconsistency in practice have resulted-for example, on the question of whether opinions of defendants or employees of defendants sued for professional negligence, or of plaintiffs' treating physicians must be disclosed. See Stella, 2013 VT 8, % 17.
The present amendment answers the question in the interest of clarity and fair notice by adopting the federal language to require that all witnesses with opinions under Rules of Evidence 702, 703, or 705 be disclosed. The amendment does not, however, adopt any of the heightened disclosure requirements of the federal rule. There is no automatic disclosure. No report is required. The amended rule retains the existing provisions that rely on expert witness disclosures, by counsel, in response to interrogatories. An interrogatory may ask for the subject matter of the expert's testimony, the substance of the expert's facts and opinions, and a summary of the grounds for each opinion.
Note that the nature, number, and timing of interrogatories permitted to be made under amended Rule 26(b)(5)(A)(i), or of other expert discovery under Rule 26(b)(5), may be established in a scheduling order under Rule 16.2 entered after a discovery conference under Rule 26(f). The discovery conference may be held at any time after commencement of the action on the court's own motion or the motion of a party and may be combined with a pretrial conference under Rule 16.
Specifically, with respect to the testimony of treating physicians, production of treatment records will suffice if the response states that the treating physician's opinion testimony will be restricted to that set forth in her treatment records. If the opinion goes beyond that, however, the amended rule makes clear that the party who is answering discovery must disclose the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions of the expert and a summary of the grounds for each opinion.
Reporter's Notes-2018 Amendment
Rules 26(b)(4) and (5) are amended to correct internal references to other provisions of the rule that were not corrected when the rule was amended by order of July 14, effective September 18, 2017.
2. That these amendments are prescribed and promulgated effective December 10, 2018. The Reporter's Notes are advisory.
3. That the Chief Justice is authorized to report these amendments to the General Assembly in accordance with the provisions of 12 V.S.A. § 1, as amended.
Reporter's Notes-2018 Amendment
Rule 26(f) is amended to change its 15-day time period to 14 days consistent with the simultaneous "day is a day" amendments to V.R.C.P. 6.
Reporter's Notes-2017 Amendment
Rule 26 is amended to adapt portions of amendments to F.R.C.P. 26 effective December 1,2015. See, generally, Federal Advisory Committee's Note to 2015 amendments ofF.R.C.P. 26. New Rule 26(b)(l) incorporates amended F.R.C.P. 26(b)(l) verbatim, significantly redefining the scope of discovery under the former Vermont rule. Discovery must now be relevant to any party's claim or defense, as opposed to being reasonably calculated to lead to the discovery of admissible evidence. Now, if information is otherwise within the scope of the rule, it "need not be admissible in evidence to be discoverable." A propOl1ionality requirement has been added, saying that discovery may now only be obtained if it is "propOl1ional to the needs of the case" as defined by five factors. These factors were added to the Federal Rule by 1983 and 1993 amendments that were not adopted for V.R.C.P. 26(b)(1).
New Rule 26(b)(2)(A) is carried forward from present Rule 26(b)(1) to which it was added by a 2009 amendment incorporating what is now F.R.C.P. 26(b)(2)(B). Former Rules 26(b)(2)-(5) are renumbered (3)-(6). Rule 26(c)(2) is amended to adopt the 2015 amendment to F.R.C.P. 26(c)(1)(B), allowing a protective order to address "the allocation of expenses" to eliminate any doubt that an order could include such a provision. See Federal Advisory Committee's Note to 2015 amendment of F.R.C.P. 26(c)(1)(B). Rule 26(f) is amended to adopt the 2015 amendment adding F.R.C.P. 26(f)(3)(C) to provide that the discovery plan include issues about electronically stored information.