Other changes in the mechanics of discovery are designed to encourage extrajudicial discovery with a minimum of court intervention. Another provides that a party is not under a duty to supplement his responses to requests for discovery, except as specified (Rule 26(e)). A new provision eliminates the automatic grant of priority in discovery to one side (Rule 26(d)). A variety of changes are made in the mechanics of the discovery process, affecting the sequence and timing of discovery, the respective obligations of the parties with respect to requests, responses, and motions for court orders, and the related powers of the court to enforce discovery requests and to protect against their abusive use. (5) Medical examination is made available as to certain nonparties. (4) It is provided that interrogatories and requests for admission are not objectionable simply because they relate to matters of opinion or contention, subject of course to the supervisory power of the court (Rules 33(b), 36(a)).
#DISCOVERY VS DISCOVERY PRO TRIAL#
(3) Provision is made for discovery with respect to experts retained for trial preparation, and particularly those experts who will be called to testify at trial (Rule 26(b)(4)). However, a showing of need is required for discovery of “trial preparation” materials other than a party's discovery of his own statement and a witness’ discovery of his own statement and protection is afforded against disclosure in such documents of mental impressions, conclusions, opinions, or legal theories concerning the litigation. (2) A showing of good cause is no longer required for discovery of documents and things and entry upon land (Rule 34). New provisions are made and existing provisions changed affecting the scope of discovery: (1) The contents of insurance policies are made discoverable (Rule 26(b)(2)).
Those summarized here are among the more important changes. These amendments make substantial changes in the discovery rules.
The amendments now proposed reflect the first comprehensive review of the discovery rules undertaken since 1938. Although the discovery rules have been amended since 1938, the changes were relatively few and narrowly focused, made in order to remedy specific defects. It was expected from the outset that they would be important, but experience has shown them to play an even larger role than was initially foreseen. The discovery rules, as adopted in 1938, were a striking and imaginative departure from tradition.
This statement provides a framework for the consideration of individual rule changes. A separate note of customary scope is appended to amendments proposed for each rule. This statement is intended to serve as a general introduction to the amendments of Rules 26–37, concerning discovery, as well as related amendments of other rules. Notes of Advisory Committee on Rules-1970 Amendments to Discovery Rules
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