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ENGROSSED SENATE
BILL NO. 322 By: Daniels of the Senate
and
Moore of the House
An Act relating to the Oklahoma Discovery Code;
amending 12 O.S. 2011, Section 3226, as last amended
by Section 3, Chapter 378, O.S.L. 2017 (12 O.S. Supp.
2020, Section 3226), which relates to discovery
methods; requiring inclusion of certain information
in initial disclosures; authorizing sanctions for
certain noncompliance; and providing an effective
date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 12 O.S. 2011, Section 3226, as
last amended by Section 3, Chapter 378, O.S.L. 2017 ( 12 O.S. Supp.
2020, Section 3226), is amended to read as follows:
Section 3226. A. DISCOVERY METHODS; INITIAL DISCLOSURES.
1. DISCOVERY METHODS. Parties may obtain discovery regarding
any matter that is relevant to any party ’s claim or defense by one
or more of the following metho ds: Depositions upon oral examination
or written questions; written interrogator ies; production of
documents or things or permission to enter upon land or other
property, for inspection and other purposes; physical and mental
examinations; requests for ad mission; authorizations for release of
records; and otherwise by court order upon showing of good cause.
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Except as provided in this section or unless the court orders
otherwise under this section, the frequency of use of these methods
is not limited.
2. INITIAL DISCLOSURES.
a. Except in categories of proceedings specified in
subparagraph b of this paragraph, or to the extent
otherwise stipulated or directed by order, a party,
without awaiting a discovery request, shall provide to
other parties a computati on of any category of damages
claimed by the disclosing party, making available f or
inspection and copying the documents or other
evidentiary material, not privileged or protec ted from
disclosure, on which such computation is based,
including materials bea ring on the nature and extent
of injuries suffered. Subject to subsection B of t his
section, in any action in which physical or mental
injury is claimed, the party making the claim shall
provide to the other parties a release or
authorization allowing the parties to obtain relevant
medical records and bills, and, when relevant, a
release or authorization for employment and scholastic
records. Additionally, a party making a cla im for
physical or mental injury shall provide explanation of
benefits, payment logs or o ther written documentation
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of payments made on behalf of the party by an
insurance company or state or federal agency that
provides health care coverage toward medical bills
claimed as damages in the action.
b. The following categories of proceedings are e xempt
from initial disclosure under subparagraph a of this
paragraph:
(1) an action for review of an administrative record,
(2) a petition for habeas corpus or other proceeding
to challenge a criminal conviction or sentence,
(3) an action brought without c ounsel by a person in
custody of the United States, a state , or a state
subdivision,
(4) an action to enforce or quash an administrative
summons or subpoena,
(5) an action by the United States to recover benefit
payments,
(6) an action by the United States to collect on a
student loan guaranteed by the United States,
(7) a proceeding ancillary to proceedings in other
courts, and
(8) an action to enforce an arbitration award.
c. Disclosures required under this paragraph shall be
made at or within sixty (60) days after service unless
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a different time is set by stipulation or court order,
or unless a party objects that initial disclosures are
not appropriate in the circum stances of the action and
states the objection in a motion filed with the court.
In ruling on the objection, the court shall determine
what disclosures, if a ny, are to be made and set the
time for disclosure. A party shall make its initial
disclosures based on the information then readily
available to it and is not excused from making its
disclosures because it has not fully completed its
investigation of the case or because it challenges the
sufficiency of another party ’s disclosures or because
another party has not made its disclosures. Failure
to comply with the requirements set forth in this
paragraph shall subject the noncompliant party to
sanctions pursuant to Section 3237 of this title.
B. DISCOVERY SCOPE AND LIMITS. Unless otherwise limited by
order of the court in accordance with the Oklahoma Discovery C ode,
the scope of discovery is as follows:
1. IN GENERAL.
a. Parties may obtain discovery regarding a ny matter, not
privileged, which is relevant to any party ’s claim or
defense, reasonably calc ulated to lead to the
discovery of admissible evidence and pr oportional to
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the needs of the case, considering the importance of
the issues at stake in the action, the amount in
controversy, the parties ’ relative access to relevant
information, the parties ’ resources, the importance of
the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs
its likely benefit. Inf ormation within this scope of
discovery need not be admissible in evidence to be
discoverable.
b. A party shall produce upon request pursuant to Section
3234 of this title, any insuran ce agreement under
which any person carrying on an insurance business ma y
be liable to satisfy part or all of a judgment which
may be entered in the action or to ind emnify or
reimburse for payments made to satisfy the judgment .
Information concerning the insurance agreement is not
by reason of disclosure admissible in evidenc e at
trial. For purposes of this section, an application
for insurance shall not be treated as a part of an
insurance agreement.
2. LIMITATIONS ON FREQU ENCY AND EXTENT.
a. By order, the court may alter the limits on the length
of depositions under Sectio n 3230 of this title, on
the number of interrogatories under Section 3233 of
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this title, on the number of requests to produce under
Section 3234 of this t itle, or on the number of
requests for admission under Section 3236 of this
title.
b. A party is not required to provide discovery of
electronically stored information from sources that
the party identifies as not reasonably accessible
because of undue bur den or cost. On motion to com pel
discovery or for a protective order, the party from
whom discovery is sought must show that the
information is not reasonably accessible because of
undue burden or cost. If that showing is made, the
court may order discov ery from such sources if the
requesting party shows good cause, considering the
limitations of subpara graph c of this paragraph. The
court may specify conditions for the discovery.
c. On motion or on its own, the court shall limit the
frequency or extent of discovery otherwise allowed if
it determines that:
(1) the discovery sought is unreasonably cumulat ive
or duplicative, or can be obtained from some
other source that is more convenient, less
burdensome, or less expensive,
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(2) the party seeking discovery has had ample
opportunity to obtain the information by
discovery in the action, or
(3) the proposed discovery is outside the scope
permitted by subparagraph a of paragraph 1 of
this subsection.
d. If an officer, director or managing agent of a
corporation or a government official is s erved with
notice of a deposition or subpoena regarding a matter
about which he or she has no knowledge, he or she may
submit at a reasonable time prior to the date of the
deposition an affidavit to the noticing party so
stating and identifying a person wi thin the
corporation or government entity who has knowledge of
the subject matter involved in the pending action.
Notwithstanding such affidavit, the noticing party may
proceed with the deposition, subject to the noticed
witness’s right to seek a protecti ve order.
3. TRIAL PREPARATION: MATERIALS.
a. Unless as provided by pa ragraph 4 of this subsection,
a party may not discover documents and tangible things
that are prepared in anticipation of litigation or for
trial by or for another party or its represe ntative,
including the other party ’s attorney, consultant,
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surety, indemnitor, insurer or agent. Subject to
paragraph 4 of this subsection, such materials may be
discovered if:
(1) they are otherwise discoverable under paragr aph 1
of this subsection, and
(2) the party shows that it has substantial need for
the materials to prepare its case and cannot,
without undue hardship, obtain their substantial
equivalent by other means.
b. If the court orders discovery of such materials, the
court shall protect again st disclosure of the mental
impressions, conclusions, opinions or legal theories
of a party’s attorney or other representative
concerning the litigation.
c. A party or other person may, upon request and without
the required showing, obtain the person ’s own previous
statement about the action or its subject matter. If
the request is refused, the person may move for a
court order, and the provisions of paragraph 4 of
subsection A of Section 3237 of this title apply to
the award of expenses. A previous state ment is
either:
(1) a written statement that the person has signed or
otherwise adopted or approved, or
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(2) a contemporaneous stenographic, mechanical,
electrical, or other recording, or a
transcription thereof, which recites
substantially verbatim the per son’s oral
statement.
4. TRIAL PREPARATION: EXPERTS.
a. Discovery of facts known and opinions held by experts,
otherwise discoverable under the provisions of
paragraph 1 of this subsection and acquired or
developed in anticipation of litigation or for tr ial,
may be obtained only as follows:
(1) a party may, through interroga tories, require any
other party to identify each person whom that
other party expects to call as an expert witness
at trial and give the address at which that
expert witness may be loc ated,
(2) after disclosure of the names and addresses of
the expert witnesses, the other party expects to
call as witnesses, the party, who has requested
disclosure, may depose any such expert witnesses
subject to scope of thi s section. Prior to
taking the deposition the party must give notice
as required in subsections A and C of Section
3230 of this title, and
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(3) in addition to taking the depositions of expert
witnesses the party may, through interrogatories,
require the party who expects to call the ex pert
witnesses to state the subject matter on which
each expert witness is expected to testify; the
substance of the facts and opinions to which the
expert is expected to testify and a summary of
the grounds for each opinion; the qualifications
of each expert witness, including a list of all
publications authored by the expert witness
within the preceding ten (10) years; the
compensation to be paid to the expert witne ss for
the testimony and preparation for the testimony;
and a listing of any other cases in which the
expert witness has testified as an expert at
trial or by deposition within the preceding four
(4) years. An interrogatory seeking the
information specified above shall be treated as a
single interrogatory for purpo ses of the
limitation on the number of interrogatories in
Section 3233 of this title.
b. The protection provided by paragraph 3 of this
subsection extends to communications between the
party’s attorney and any expert witness retained or
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specially employed to provide expert testimony in the
case or whose duties as the party ’s employee regularly
involve giving expert testimony, except to the extent
that the communications:
(1) relate to compensation for the expert’s study or
testimony,
(2) identify facts or data that the party’s attorney
provided and that the expert considered in
forming the opinions to be ex pressed, or
(3) identify assumptions that the party ’s attorney
provided and that the expert r elied upon in
forming the opinions to be expressed.
c. A party may not, by interrogatories or deposition,
discover facts known or opinions held by an expert who
has been retained or specially employed by another
party in anticipation of litigation or to pr epare for
trial and who is not expected to be called as a
witness at trial, except as provi ded in Section 3235
of this title or upon a showing of exceptional
circumstances under which it is impracticable for the
party to obtain facts or opinions on the sam e subject
by other means.
d. Unless manifest injustice would result:
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(1) the court shall require that the party seeking
discovery pay the expert a reasonable fee f or
time spent in responding to discovery under
division (2) of subparagraph a of this paragra ph
and subparagraph c of this paragraph, and
(2) the court shall require that the party see king
discovery with respect to discovery obtained
under subparagraph c o f this paragraph, pay the
other party a fair portion of the fees and
expenses reasonably incu rred by the latter party
in obtaining facts and opinions from the expert.
5. CLAIMS OF PRIVILEGE OR PROTECTION OF TRIAL PREPARATION
MATERIALS.
a. When a party withholds information otherwise
discoverable under the Oklahoma Discovery Code by
claiming that it is privileged or subject to
protection as trial preparatio n material, the party
shall make the claim expressly and shall describe the
nature of the documents, c ommunications, or things not
produced or disclosed in a manner that, without
revealing information itself privileged or protected,
will enable other parti es to assess the applicability
of the privilege or protection.
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b. 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 info rmation of the
claim and the basis for it. After being notified, a
party shall promptly return, seque ster, or destroy the
specified information and any copies the party has;
shall not use or dis close the information until the
claim is resolved; shall take reasonable steps to
retrieve the information if the party has disclosed it
before being notified; and may promptly present the
information to the court under seal for a
determination of the clai m. The producing party shall
preserve the information until the claim is resolved.
This mechanism is procedural only and does not alter
the standards governing w hether the information is
privileged or subject to protection as trial
preparation material o r whether such privilege or
protection has been waived.
C. PROTECTIVE ORDERS.
1. Upon motion by a party or by the person from whom discovery
is sought, accompani ed by a certification that the movant has in
good faith conferred or attempted to confer, eit her in person or by
telephone, with other affected parties in an effort to resolve the
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dispute without court action, and for good cause shown, the court in
which the action is pending or on matters relating to a deposition,
the district court in the county where the deposition is to be taken
may enter any order whic h justice requires to protect a party or
person from annoyance, harassment, embarrassment, oppression or
undue delay, burden or expense, including one or more of the
following:
a. that the discovery not be had,
b. that the discovery may be had only on spec ified terms
and conditions, including a designation of the time,
place or the allocation of expenses,
c. that the discovery may be had only by a method of
discovery other than that selected by th e party
seeking discovery,
d. that certain matters not be inq uired into, or that the
scope of the disclosure or discovery be limited to
certain matters,
e. that discovery be conducted with no one present except
persons designated by the court,
f. that a deposition after being sealed be opened only by
order of the court,
g. that a trade secret or other confidential research,
development or commercial information not be disclosed
or be disclosed only in a designated way, and
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h. that the parties simultaneously file specified
documents or information enclosed in sealed e nvelopes
to be opened as direc ted by the court.
2. 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 paragraph 4 of subsection A of Section 3237 of this
title apply to the award of expenses incurred in r elation to the
motion. Any protective order of the court which has the effect of
removing any material obtained by discovery from the public record
shall contain the following:
a. a statement that the court has determined it is
necessary in the interests of justice to remove the
material from the public record,
b. specific identification of the m aterial which is to be
removed or withdrawn from the public r ecord, or which
is to be filed but not placed in the public record,
and
c. a requirement that any part y obtaining a protective
order place the protected material in a sealed manila
envelope clearly marked with the caption and case
number and is clearly mar ked with the word
“CONFIDENTIAL”, and stating the date the order was
entered and the name of the judge entering the order.
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This requirement may also be satisfied by requiring
the party to file th e documents pursuant to the
procedure for electronically fili ng sealed or
confidential documents approved for electronic filing
in the courts of this state.
3. No protective order entered after the filing and
microfilming of documents of any kind shall be construed to require
the microfilm record of such filing to be amended in any fashion.
4. The party or counsel which has received the protective order
shall be responsible for promptly presenting the order to
appropriate court clerk personnel for appropr iate action.
5. All documents produced or testimony given un der a protective
order shall be retained in the office of counsel until required by
the court to be filed in the case.
6. Counsel for the respective parties shall be responsible for
informing witnesses, as necessary, of the contents of the protective
order.
7. When a case is filed in which a party intends to seek a
protective order removing material from the public record, the
plaintiff(s) and defendant(s) shall be initially designated on the
petition under pseudonym such as “John or Jane Doe”, or “Roe”, and
the petition shall clearly indicate that the party designations are
fictitious. The party seeking confidentiality or other order
removing the case, in whole or in part, from the public recor d,
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shall immediately present application to the court, seekin g
instructions for the conduct of the case, including confidentiality
of the records.
D. SEQUENCE AND TIMING OF DISCOVERY. Unless the parties
stipulate or the court orders otherwise for the con venience of
parties and witnesses and in the interests of jus tice, methods of
discovery may be used in any sequence. The fact that a party is
conducting discovery , whether by deposition or otherwise, shall not
operate to delay discovery by any other party .
E. SUPPLEMENTATION OF RESPONSES. A party who has responde d to
a request for discovery w ith a response that was complete when it
was made is under no duty to su pplement the response to include
information thereafter acquired, except as follows:
1. A party is under a duty seasonably to supplement the
response with respect to any question dire ctly addressed to:
a. the identity and location of persons having knowle dge
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 the person is expected to testify, and the
substance of the testimony of the person;
2. A party is under a dut y seasonably to amend a prior response
to an interrogatory, request for production, or reques t for
admission if the party obtains information upon the bas is of which:
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a. (1) the party knows that the response was incorrect
in some material respect when made , or
(2) the party knows that the response, which was
correct when made, is no longer true in some
material respect, and
b. the additional or corrective i nformation has not
otherwise been made known to the other parties during
the discovery process or in w riting; and
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. DISCOVERY CONFERENCE. At any time after commencem ent of an
action, the court may direct the attorneys for the parties to appear
for a conference 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 pl aced 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 his attorney are under a duty to participate in
good faith in the framing of a d iscovery plan if a plan is proposed
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by the attorney for any party. Noti ce of the motion shall be served
on all parties. Objections or additions to matters set fort h in the
motion shall be served not later than ten (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 dis covery, setting limitations
on discovery, if any; and determi ning such other matters, inclu ding
the allocation of expenses, as are necessary for the proper
management of discovery in the action. In preparing the plan for
discovery the court shall protect the parties from excessive or
abusive use of discovery. An o rder shall be altered or amend ed
whenever justice so requires.
Subject to the right of a party who pro perly moves for a
discovery conference to prompt convening of the conference, the
court may combine the discovery conference with a pretrial
conference.
G. SIGNING OF DISCOVERY REQUES TS, RESPONSES AND OBJECTIONS.
Every request for discovery, response or objection thereto made by a
party represented by an attorney shall be signed by at least one of
the party’s attorneys of record in the party ’s individual name whose
address shall be stated. A party who is not represented by an
attorney shall sign the requ est, response or objection and state the
party’s address. The signature of the attorney or p arty constitutes
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a certification that the party has read the request, response or
objection, and that it is:
1. To the best of the party ’s knowledge, information and belief
formed after a reasonable inquiry consistent with the Oklahoma
Discovery Code and warranted by existing law or a good faith
argument for the extension, modification or rever sal of existing
law;
2. Interposed in good faith and not primarily to c ause delay or
for any other improper purpose; and
3. Not unreasonable or unduly burdensome o r expensive, given
the nature and complexity of the case, the discovery already had in
the case, the amount in controversy, and other values at stake in
the litigation. If a request, response or objection is not signed,
it shall be deemed ineffective.
If a certification is made in violation of the provisions of
this subsection, 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 to the
amount of the reasonable expenses occasioned thereby, including a
reasonable attorney fee.
SECTION 2. This act shall become effective November 1, 2021.
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Passed the Senate the 8th day of March, 2021.
Presiding Officer of the Senate
Passed the House of Representatives the ____ day of __________,
2021.
Presiding Officer of the House
of Representatives