CR 26

General Provisions Governing Discovery

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CR 26
GENERAL PROVISIONS GOVERNING DISCOVERY
(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 and mental examinations; and requests for admission.
(b) Discovery Scope and Limits. 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 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 section (a) shall be
limited by the court if it determines that:
(A) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from
some other source that is more convenient, less burdensome, or less expensive;
(B) the party seeking discovery has had ample opportunity by discovery in the action to
obtain the information sought; or
(C) the discovery is unduly burdensome or expensive, taking into account the needs of the
case, the amount in controversy, limitations on the parties, 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 section (c).
(2) Insurance Agreements. A party may obtain discovery and production of: (i) 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; and (ii) any
documents affecting coverage (such as denying coverage, extending coverage, or reserving
rights) from or on behalf of such person to the covered person or the covered person's
representative. Information concerning the insurance agreement is not by reason of disclosure
admissible in evidence at trial. For purposes of this section, an application for insurance shall not
be treated as part of an insurance agreement.
(3) Structured Settlements and Awards. In a case where a settlement or final award
provides for all or part of the recovery to be paid in the future, a party entitled to such payments
may obtain disclosure of the actual cost to the defendant of making such payments. This
disclosure may be obtained during settlement negotiations upon written demand by a party
entitled to such payments. If disclosure of cost is demanded, the defendant may withdraw the
offer of a structured settlement at any time before the offer is accepted.
(4) Trial Preparation: Materials. Subject to the provisions of subsection (b)(5) of this
rule, a party may obtain discovery of documents and tangible things otherwise discoverable
under subsection (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 a 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 such party’s case and that
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 rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. For
purposes of this section, 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 substantially verbatim recital of an oral statement by the person making it and
contemporaneously recorded.
(5) Trial Preparation: Experts. Discovery of facts known and opinions held by experts,
otherwise discoverable under the provisions of subsection (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, 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, and to state such
other information about the expert as may be discoverable under these rules. Except for special
proceedings, a case schedule deadline to disclose experts does not excuse a party from timely
responding to expert discovery to the extent responsive information is available. (ii) Unless these
rules impose an earlier deadline, and in no event later than the deadline for primary or rebuttal
expert witness disclosures imposed by a case schedule or court order, each party shall identify
each person whom that party expects to call as a primary or rebuttal expert witness at trial, state
the subject matter on which the expert is expected to testify, 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.
(B) A party may, subject to the provisions of this rule and of rules 30 and 31, depose each
person whom any other party expects to call as an expert witness at trial.
(C) A party may discover facts known or opinions held by an expert who is not expected to
be called as a witness at trial, only as provided in rule 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.
(D) 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
subsections (b)(5)(B) and (b)(5)(C) of this rule; and (ii) with respect to discovery obtained under
subsection (b)(5)(B) of this rule the court may require, and with respect to discovery obtained
under subsection (b)(5)(C) of this rule 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.
(6) Claims of Privilege or Protection as Trial-Preparation Materials for Information
Produced. If information produced in discovery is subject to a claim of privilege or of
protection as trial-preparation material, the party making the claim may notify any party that
received the information of the claim and the basis for it. After being notified, a party must
promptly return, sequester, or destroy the specified information and any copies it has; must not
use or disclose the information until the claim is resolved; and must take reasonable steps to
retrieve the information if the party disclosed it before being notified. Either party may promptly
present the information in camera to the court for a determination of the claim. The producing
party must preserve the information until the claim is resolved.
(7) Discovery From Treating Health Care Providers. The party seeking discovery from a
treating health care provider shall pay a reasonable fee for the reasonable time spent in
responding to the discovery. If no agreement for the amount of the fee is reached in advance,
absent an order to the contrary under section (c), the discovery shall occur and the health care
provider or any party may later seek an order setting the amount of the fee to be paid by the party
who sought the discovery. This subsection shall not apply to the provision of records under
RCW 70.02 or any similar statute, nor to discovery authorized under any rules for criminal
matters.
(8) Treaties or Conventions. If the methods of discovery provided by applicable treaty or
convention are inadequate or inequitable and additional discovery is not prohibited by the treaty
or convention, a party may employ the discovery methods described in these rules to supplement
the discovery method provided by such treaty or convention.
(c) Protective Orders. Upon motion by a party or by the person from whom discovery is
sought, and for good cause shown, the court in which the action is pending or alternatively, on
matters relating to a deposition, the court in the county where the deposition is to be taken 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 the contents of a deposition not be disclosed or be disclosed only in a designated
way;
(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 37(a)(4) 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 has a duty to seasonably supplement or correct that response with information
thereafter acquired. Supplementation or correction shall clearly set forth the information being
supplemented or corrected.
Failure to seasonably supplement or correct in accordance with this rule will subject the
party to such terms and conditions as the trial court may deem appropriate.
(f) Discovery Conference. At any time after commencement of an action the court may
direct the attorneys for the parties to attend a conference by remote means or in person on the
subject of discovery. The court shall do so upon motion by the attorney for any party if the
motion includes:
(1) A statement of the issues as they then appear;
(2) A proposed plan and schedule of discovery;
(3) Any limitations proposed to be placed on discovery;
(4) Any other proposed orders with respect to discovery; and
(5) A statement showing that the attorney making the motion has made a reasonable effort
to reach agreement with opposing attorneys on the matters set forth in the motion.
Each party and each party’s attorney are 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 served not later than 10 days after service of the motion.
Following the discovery conference, the court shall enter an order tentatively identifying
the issues for discovery purposes, 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.
(g) Signing of Discovery Requests, Responses, and Objections. Every request for
discovery or response or objection thereto made by a represented party shall be signed by at least
one attorney of record in the attorney’s name. A request, response, or objection by a
nonrepresented party shall be signed by that party. Objections shall be in response to the specific
request objected to. General objections shall not be made. A party making an objection based on
privilege shall describe the grounds for the objection and, where consistent with subsection
(b)(1), shall identify all matters the objecting party contends are subject to the privilege
including sufficient information to allow other parties to evaluate the claim of privilege without
disclosing protected content. The signature of the attorney or party constitutes a certification that
the attorney or the party has read the request, response, or objection, and that to the best of their
knowledge, information, and belief formed after a reasonable inquiry it is:
(1) consistent with these rules and warranted by existing law or a good faith argument for
the extension, modification, or reversal of existing law;
(2) not interposed for any improper purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation; and
(3) not unreasonable or unduly burdensome or expensive, given the needs of the case, the
discovery already had in the case, the amount in controversy, and the importance of the issues at
stake in the litigation. If a request, response, or objection is not signed, it shall be stricken unless
it is signed promptly after the omission is called to the attention of the party making the request,
response, or objection and a party shall not be obligated to take any action with respect to it until
it is signed.
If 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 fee.
(h) Use of Discovery Materials. A party filing discovery materials on order of the court
or for use in a proceeding or trial shall file only those portions upon which the party relies and
may file a copy in lieu of the original.
(i) Motions; Conference of Counsel Required. The court will not entertain any motion
or objection with respect to rules 26 through 37 unless counsel have conferred with respect to the
motion or objection. Counsel for the moving or objecting party shall arrange for a mutually
convenient conference, whether in person or by telephone or by other remote means. If the court
finds that counsel for any party, upon whom a motion or objection in respect to matters covered
by such rules has been served, has willfully refused or failed to confer in good faith, the court
may apply the sanctions provided under rule 37(b). Any motion seeking an order to compel
discovery or obtain protection shall include counsel’s certification that the conference
requirements of this rule have been met.
(j) Access to Discovery Materials Under RCW 4.24.
(1) In General. For purposes of this rule, "discovery materials" means depositions,
answers to interrogatories, documents or electronic data produced and physically exchanged in
response to requests for production, and admissions pursuant to rules 26-37.
(2) Motion. The motion for access to discovery materials under the provisions of
RCW 4.24 shall be filed in the court that heard the action in which the discovery took place.
The person seeking access shall serve a copy of the motion on every party to the action, and on
nonparties if ordered by the court.
(3) Decision. The provisions of RCW 4.24 shall determine whether the motion for access
to discovery materials should be granted.
[Adopted effective July 1, 1967; Amended effective July 1, 1972; September 1, 1985; September
1, 1989; December 28, 1990; September 1, 1992; September 17, 1993; September 1, 1995;
January 12, 2010; April 28, 2015; July 9, 2024; October 1, 2024.]

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