Ariz. R. Civ. P. 26.2

Exchange of Records and Discovery Limits in Medical Malpractice

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Rule 26.2. Tiered Limits to Discovery Based on Attributes of Cases
(a) Generally.  This rule explains how much discovery a party may take in their
case. The amount of discovery a party may take is limited by the tier to which
their case is assigned.  This rule explains how and when cases are assigned to
one of three tiers, each of which has different limits.

(b) Criteria for Assigning Cases to Tiers.  Cases should be considered for
assignment to a tier by case characteristics, consistent with the factors that
define  proportional  discovery  in  Rule  26(b)(1).  The  following  sets  of
characteristics are not exhaustive:
(1) Tier 1: Case Characteristics.  These are simple cases that can be tried in
one or two days. Automobile tort, intentional tort, premises liability, and
insurance coverage claims arising from those types of claims are generally
Tier  1  cases,  absent  unusual  circumstances.  Cases  with  minimal
documentary evidence and few witnesses are likely Tier 1 cases.
(2) Tier 2: Case Characteristics.  These are cases of intermediate complexity.
They are likely to have more than minimal documentary evidence and more
than a few witnesses. They are likely to include, but may not include, expert
witnesses. They are likely to involve multiple theories of liability, and may
involve counterclaims or cross-claims. Cases that do not easily fit within
Tiers 1 and 3 belong here.
(3) Tier 3: Case Characteristics. These are cases that are logistically or legally
complex. Class actions, antitrust, multi-party commercial or construction
cases,  securities  cases,  environmental  torts,  construction  defect  cases,
medical malpractice cases, products liability cases, and mass torts are
among  those  cases  that  generally  belong  in  Tier  3,  absent  unusual
circumstances.  Cases with voluminous documentary evidence, or with
numerous pretrial motions raising difficult or novel legal issues, are likely
Tier 3 cases. Cases requiring management of a large number of witnesses or
separately represented parties, or which require coordination with related
actions pending in other courts, are likely Tier 3 cases.
(c) How Courts Assign Cases to Tiers.  The tier to which a case is assigned is
determined  by  either:  (1)  stipulation  or  motion,  for  good  cause  shown;
(2) placement by the court based on the characteristics of the case; or (3) the
sum of the relief sought in the complaint, and any counterclaims or crossclaims.
(1) By Stipulation of Parties or on Motion.  As provided in Rule 16(c)(6), all
parties by stipulation or any party by motion may request that the court
assign the case to a tier other than the one to which it would be assigned
under Rule 26.2(c)(3), for good cause. A court must determine good cause
to vary a tier with reference to the factors that define proportional discovery

in Rule 26(b)(1). The court may reject any stipulation or joint motion
requesting assignment under this rule.
(2) Placement by Court.  The court may evaluate a case for assignment to a
tier. The court has the discretion to assign a case to any tier, based on the
totality  of  the  circumstances  of  that  case,  consistent  with  the  case
characteristics  set  forth  in  Rule  26.2(b)  and  the  factors  that  define
proportional discovery in Rule 26(b)(1).
(3) Monetary or Nonmonetary Relief Requested.  All cases not assigned a tier
by the procedures in Rule 26.2(c)(1) or (2) are deemed to be assigned a tier
based on the damages claimed in the action, as defined in Rule 26.2(e).
(A) Tier 1.  Actions claiming $50,000 or less in damages are permitted
standard discovery as described for Tier 1.
(B) Tier 2.  Actions claiming more than $50,000 and less than $300,000 in
damages are permitted standard discovery as described for Tier 2.
(C) Tier 3.  Actions claiming $300,000 or more in damages are permitted
standard discovery as described for Tier 3.
(D)  Certain  Actions  Claiming  Nonmonetary  Relief.  Actions  claiming
nonmonetary relief alone or in conjunction with claims for damages under
$300,000 are permitted standard discovery as described for Tier 2.
(d) When Courts Assign Cases to Tiers.
(1) By Monetary or Nonmonetary Relief Requested.  From the filing of the
complaint until a court assigns a case to a different tier, the case is deemed
to be assigned to the tier to which it would be assigned based on its
monetary or nonmonetary relief requested under Rule 26.2(c)(3).
(2) By the Court’s Own Evaluation.  If a court evaluates a case for tiering
under Rule 26.2(c)(2), it must assign the case to a tier no later than 20 days
after the parties file their Joint Report under Rule 16(c)(1).
(3) By Stipulation of Parties or Motion.  If a court assigns a case a tier based
on a stipulation or motion under Rule 26.2(c)(1), it should do so at the
earliest practicable time. That notwithstanding, a later joined or later served
party may promptly move the court to change the assigned tier.

(e) Definition of Damages in Tiering.  For purposes of determining the tier for
standard discovery, the amount of damages claimed in an action includes all
monetary damages sought (without duplication for alternative theories) by all
parties in all claims for relief in the original pleadings, but excludes claims for
punitive damages, interest, attorney’s fees in the case to be tiered, and costs.
(f) Limits on Discovery.  Discovery per side (plaintiffs collectively, defendants
collectively, and third-party defendants collectively) in each tier is limited as
stated below. The time to complete discovery runs from the date of the Early
Meeting, subject to the court’s power to extend the time for completion of
discovery for good cause shown.
(1) Tier 1.  Each side in a Tier 1 case is permitted 5 total hours of fact witness
depositions, 5 Rule 33 interrogatories, 5 Rule 34 requests for production, 10
Rule 36 requests for admission, and 120 days  in  which to  complete
discovery.
(2) Tier 2. Each side in a Tier 2 case is permitted 15 total hours of fact witness
depositions, 10 Rule 33 interrogatories, 10 Rule 34 requests for production,
10 Rule 36 requests for admission, and 180 days in which to complete
discovery.
(3) Tier 3. Each side in a Tier 3 case is permitted 30 total hours of fact witness
depositions, 20 Rule 33 interrogatories, 10 Rule 34 requests for production,
20 Rule 36 requests for admission, and 240 days in which to complete
discovery.
(g) Obtaining Discovery Beyond Tier Limits.
(1) Generally.  To obtain discovery beyond the limits on discovery established
in Rule 26.2(f), a party must file either:
(A) a motion for discovery beyond tier limits setting forth why that discovery
is  necessary  and  proportional  under  Rule  26(b)(1),  attaching  that
discovery, or in the case of a request for deposition, describing the
anticipated discovery, and attaching a good faith consultation certificate
complying with Rule 7.1(h); or
(B) a stipulation that, for each category of discovery for which the limit of
discovery  has  been  requested,  that  discovery  beyond  tier  limits  is
necessary and proportional under Rule 26(b)(1).

(2) Timing.  A motion or stipulation under (1) must be filed before the close of
standard discovery and before serving a discovery request that reaches or
exceeds the limit imposed by Rule 26.2(f) on any category of discovery.
(3)  Effect of Stipulation.  A filed “Stipulation for Overlimit Discovery”
complying with this rule authorizes the taking of the agreed additional
discovery without the necessity for a court order. The court retains the
power to disapprove any such stipulation.
(h) Circumstances  Requiring  Additional  Deposition  Time  or  Written
Discovery.  Despite the total limits on deposition hours set out in Rule
26.2(f)(1)-(3):
(1) in a case with more than party on a side, the court may for good cause
increase a side’s allowed hours for fact witness depositions, allocate the
allowed deposition hours among the parties on a side, or take any other
action  necessary  to  provide  each  party  on  a  side  with  a  reasonable
opportunity to conduct deposition discovery;
(2) additional examination time ordered for the reasons set forth in Rule 30(d)
does not count against the tier limits; and
(3) if the configuration of sides as defined in Rule 26.2(f) provides more
deposition time or written discovery to one group of parties with common
interests than another group of parties with common interests, the court may
for good cause adjust how Rule 26.2(f) allocates the totality of deposition
time or written discovery it allows between those sides.
(i) Variations in Expert Discovery by Tier.  Unless the parties agree or the court
orders otherwise, expert disclosures in Tier 1 or Tier 2 cases are governed by
Rule 26.1(d)(3), while expert disclosures in Tier 3 cases are governed by Rule
26.1(d)(4).
2018 Comment on Rule 26.2
Rule  26.2  establishes  a  three-tiered  system  of  case  management  to  make
discovery occur in a manner that is proportional under Rule 26(b)(1). If neither the
parties nor the court seek to actively direct a case toward a tier, the case will
receive  a  tier based  upon  the  amount  at  issue  in  the  case  or  requests  for
nonmonetary relief. However, parties can ask for a different tier, based on the
proportionality factors in Rule 26(b)(1). And courts can actively manage cases and

to assign a case to a tier at the start of the matter, on their own initiative or based
upon their own review of the Rule 16(c) Joint Report, under Rule 26.2(c)(2). Rule
26.2(b) provides many factors for courts to use in determining the tier to which a
case is best suited.
However, making discovery proportional is not an end in itself. Rules 8, 26, 26.1,
26.2, and 37, as now revised, work together to strengthen mandatory initial
disclosure of relevant material as the bedrock of Arizona civil litigation. Rule 26.2
now emphasizes keeping discovery proportional based on the understanding that
proportional discovery follows up on robust initial disclosure under Rule 26.1. The
2018 amendments seek to make initial disclosure robust through a clearer mandate
to impose sanctions under Rule 37 for failures to disclose relevant material and for
abuses of discovery.

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