In the Matter of the Amendment of SDCL 15-6-26(b)
IN THE SUPREME COURT
STATE OF SOUTH DAKOTA
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IN THE MATTER OF THE AMENDMENT
OF SDCL 15-6-26(b) RULE 06-14
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A hearing was held on February 16, 2006, at Pierre, South Dakota, relating to the
amendment of SDCL 15-6-26(b), and the Court having considered the proposed amendment, the
correspondence and oral presentations relating thereto and being fully advised in the premises,
now, therefore, it is
ORDERED that SDCL 15-6-26(b) be and it is hereby amended to read in its entirety as
Scope of discovery.
Unless otherwise limited by order of the court in
accordance with these rules, the scope of discovery is as follows:
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 will be inadmissible at the trial if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.
The frequency or extent of use of the discovery methods set forth in § 15-6-26(a) shall
be limited by the court if it determines that:
the discovery sought is unreasonably cumulative or duplicative, or is obtainable
from some other source that is more convenient, less burdensome, or less
the party seeking discovery has had ample opportunity by discovery in the action
to obtain the information sought; or
discovery is unduly burdensome or expensive, taking into account the needs of
the case, the amount in controversy, limitations on the party's resources, and the
importance of the issues at stake in the litigation.
The court may act upon its own initiative after reasonable notice or pursuant to a motion
under § 15-6-26(c).
Insurance agreements. A party may obtain discovery of the existence and contents of
any insurance agreement under which any person carrying on an insurance business may
be liable to satisfy part or all of a judgment which may be entered in the action or to
indemnify or reimburse for payments made to satisfy the judgment. Information
concerning the insurance agreement is not by reason of disclosure admissible in
evidence at trial. For purposes of this paragraph, an application for insurance shall not
be treated as part of an insurance agreement.
Trial preparation: materials. Subject to the provisions of subdivision (4) of this section,
a party may obtain discovery of documents and tangible things otherwise discoverable
under subdivision (1) of this section and prepared in anticipation of litigation or for trial
by or for another party or by or for that other party's representative (including
other party's 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 the party's case and that he the party 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, opinions, 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 subdivision 15-6-37(a)(4) apply to 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.
Trial preparation: experts. Discovery of facts known and opinions held by experts,
otherwise discoverable under the provisions of subdivision (1) of this rule and acquired
or developed in anticipation of litigation or for trial, may be obtained only as follows:
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.
Upon motion, the court may order further discovery by other means, subject to
such restrictions as to scope and such provisions, pursuant to subdivision (4)(C)
of this section, concerning fees and expenses as the court may deem appropriate.
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 as provided in § 15-6-35(b) or 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.
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 (4)(A)(ii) and (4)(B) of this section; and (ii) with
respect to discovery obtained under subdivision (4)(A)(ii) of this section the
court may require, and with respect to discovery obtained under subdivision
(4)(B) of this section 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.
Claims of Privilege or Protection of Trial Preparation Materials. When a party
withholds information otherwise discoverable under these rules by claiming that it is
privileged or subject to protection as trial preparation material, the party shall make the
claim expressly and shall describe the nature of the documents, communications, or
things not produced in a manner that, without revealing information itself privileged or
protected, will enable other parties to assess the applicability of the privilege or
IT IS FURTHER ORDERED that this rule shall become effective July 1, 2006.
DATED at Pierre, South Dakota, this 17th day of March 2006.