Probate Court Rules Table of Contents
a. Discovery Methods. Parties may obtain discovery by
one or more of the following methods: depositions upon oral examination or
written questions; written interrogatories; production of documents or things or
permission to enter upon land or other property, for inspection and other
purposes; physical or mental examinations; and requests for admission. Unless
the Court orders otherwise, or unless otherwise provided in these Rules, the
frequency of use of these methods is not limited.
b. Scope of Discovery. Unless otherwise limited by
order of the Court in accordance with these Rules, the scope of discovery is as
follows:
(1) In General. Parties may
obtain discovery regarding any matter, not privileged, which is relevant to the
subject matter involved in the pending action, whether it relates to the claim
or defense of the Party seeking discovery or to the claim or defense of any
other Party, including the existence, description, nature, custody, condition
and location of any books, documents, or other tangible things and the identity
and location of persons having knowledge of any discoverable matter. It is not
ground for objection that the information sought shall be inadmissible at the
trial if the information sought appears reasonably calculated to lead to the
discovery of admissible evidence.
(2) Trial Preparation: Materials. Subject
to the provisions of subdivision b(3) of this Rule, a Party may obtain discovery
of documents and tangible things otherwise discoverable under subdivision b(1)
of this Rule and prepared in anticipation of litigation or for trial by or for
another Party or by or for that other Party's representative (including his or
her Attorney, consultant, surety, indemnitor, insurer, or agent) only upon a
showing that the Party seeking discovery has substantial need of the materials
in the preparation of his or her case and that he or she is unable without undue
hardship to obtain the substantial equivalent of the materials by other means.
In ordering discovery of such materials when the required showing has been made,
the Court shall protect against disclosure of the mental impressions,
conclusions, or legal theories of an Attorney or other representative of a Party
concerning the litigation.
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 59 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.
(3) Trial Preparation: Experts. Discovery
of facts known and opinions held by experts, otherwise discoverable under the
provisions of subdivision b(1) of this Rule and acquired or developed in
anticipation of litigation or for trial, may be obtained only as follows:
(a) (i) A
Party may through interrogatories require any other Party to identify each
Person, whom the other Party expects to call as an expert witness at trial, to
state the subject matter on which the expert is expected to testify, and to
state the substance of the facts and opinions to which the expert is expected to
testify and a summary of the grounds for each opinion. (ii) Upon motion, the
Court may order further discovery by other means, subject to such restrictions
as to scope and such provisions, pursuant to subdivision b(3)(c) of this Rule,
concerning fees and expenses as the Court may deem appropriate.
(b) A Party
may discover facts known or opinions held by an expert, who has been retained or
specially employed by another Party in anticipation of litigation or preparation
for trial and who is not expected to be called as a witness at trial, only upon
a showing of exceptional circumstances under which it is impracticable for the
Party seeking discovery to obtain facts or opinions on the same subject by other
means.
(c) Unless
manifest injustice would result, (i) the Court shall require that the Party
seeking discovery pay the expert a reasonable fee for time spent in responding
to discovery under subdivisions b(3)(a) and b(3)(b) of this rule, and (ii) with
respect to discovery obtained under subdivision b(3)(a)(ii) of this Rule, the
Court may require, and with respect to discovery obtained under subdivision
b(3)(b), the Court shall require the Party seeking discovery to pay the other
Party a fair portion of the fees and expenses reasonably incurred by the latter
Party in obtaining facts and opinions from the expert.
c. Protective Orders. Upon Motion by a Party or by the
Person from whom discovery is sought, and for good cause shown, the Court may
make any order which justice requires to protect a Party or Person from
annoyance, embarrassment, oppression, or undue burden or expense, including one
or more of the following: (1) that the discovery not be had; (2) that the
discovery may be had only on specified terms and conditions, including a
designation of the time or place; (3) that the discovery may be had only by a
method of discovery other than that selected by the Party seeking discovery; (4)
that certain matters not be inquired into, or that the scope of the discovery be
limited to certain matters; (5) that discovery be conducted with no one present
except persons designated by the Court; (6) that a deposition after being sealed
be opened only by order of the Court; (7) that a trade secret or other
confidential research, development, or commercial information not be disclosed
or be disclosed only in a designated way; (8) that the Parties simultaneously
file specified documents or information enclosed in sealed envelopes to be
opened as directed by the Court.
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 59 apply to
the award of expenses incurred in relation to the Motion.
d. Sequence and Timing of Discovery. Unless the Court
upon Motion, for the convenience of Parties and witnesses and in the interests
of justice, orders otherwise, methods of discovery may be used in any sequence
and the fact that a Party is conducting discovery, whether by deposition or
otherwise, shall not operate to delay any other Party's discovery.
e. Supplementation of Responses. A Party, who has
responded to a request for discovery with a response that was complete when
made, is under no duty to supplement his or her response to include information
thereafter acquired, except as follows:
(1) A Party is under a duty
seasonably to supplement his or her response with respect to any question
directly addressed to (a) the identity and location of Persons having knowledge
of discoverable matters, and (b) the identity of each Person expected to be
called as an expert witness at trial, the subject matter on which he or she is
expected to testify, and the substance of his or her testimony.
(2) A Party is under a duty
seasonably to amend a prior response if he or she obtains information upon the
basis of which (a) he or she knows that the response was incorrect when made, or
(b) he or she knows that the response, though correct when made, is no longer
true.
(3) A duty to supplement responses
may be imposed by order of the Court, agreement of the Parties, or at any time
prior to trial through new requests for supplementation of prior responses.
f. Disclosure of Expert Witnesses. Within thirty (30)
days of a request by the opposing Party, or in accordance with an order of the
Court following a discovery conference, a Party shall be required to supply a
Disclosure of Expert Witness(es) as defined under Rule 702 of the Rules of Evidence, which document
shall
(1) identify each Person, including
any Party, whom the Party expects to call as an expert witness at trial,
(2) provide a brief summary of the
expert's education and experience relevant to his area of expertise,
(3) state the subject matter on which
the expert is expected to testify, and
(4) state a summary of the facts and
opinions to which the expert is expected to testify and a summary of the grounds
for each opinion. The Party shall attach to the disclosure a copy of any expert
report relating to such expert.