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SENATE FLOOR VERSION
April 11, 2023
AS AMENDED
ENGROSSED HOUSE
BILL NO. 2391 By: Culver of the House
and
Howard of the Senate
[ civil procedure – consumer litigation funding
agreements – effective date ]
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 12 O.S. 2021, Section 3226, is
amended to read as follows:
Section 3226. A. DISCOVERY METHODS; INITIAL DISCLOSURES.
1. DISCOVERY METHODS. Parties may obtain dis covery 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 interrogatories; production of
documents or things or permission to enter upon land or other
property, for inspection and other pur poses; physical and mental
examinations; requests for ad mission; authorizations for release of
records; and otherwise by court order upon showing of good cause.
Except as provided in this section o r unless the court orders
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otherwise under this section, th e 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 e xtent
otherwise stipulated or directed by order, a party,
without awaiting a disco very request, shall provide to
other parties a computati on of any category of damages
claimed by the disclosing party, making available for
inspection and copying the documen ts or other
evidentiary material, not privileged or protected 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 this
section, in any action in which p hysical 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 a nd scholastic
records.
b. The following categories of proceedings are exempt
from initial disclosure under subparagraph a of this
paragraph:
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(1) an action for review of an administrative record,
(2) a petition for habeas corpus or other proceeding
to challenge a criminal convicti on or sentence,
(3) an action brought without counsel by a person in
custody of the United States, a state, or a s tate
subdivision,
(4) an action to enforce or quash an administrative
summons or subpoena,
(5) an action by the United States to recover benef it
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 p aragraph shall be
made at or within sixty (60) days after service unless
a different time is set by stipulation or court order,
or unless a party objects that initial disclosures are
not appropriate in the circumstances of the actio n and
states the objection in a motion filed with the court.
In ruling on the obj ection, 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
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disclosures based on the informati on 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 it s disclosures.
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 any matter, not
privileged, which is rele vant to any party's claim or
defense, reasonably calculate d to lead to the
discovery of admissible evidence and pr oportional to
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. Information within this scope of
discovery need not be admissible in evidence to be
discoverable.
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b. A party shall produce upon request pursuant to Section
3234 of this title, 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 indemnif y 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 sectio n, an application
for insurance shall not be treated as a part of an
insurance agreement.
c. Production and Disclosure of Consumer Litigation
Funding Agreements.
(1) Except as otherwise stipulated or ordered by a
court of competent jurisdiction, a consumer or
the consumer's legal representative shall,
without awaiting a discovery request, disclo se
and deliver to the following persons the consumer
litigation funding agreement:
(a) each party to the civil action,
administrative proceeding, claim or cause of
action, or to each party's legal
representative,`
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(b) the court, agency or tribunal in which the
civil action, administrative proceeding,
claim or cause of action may be pending , and
(c) any known entity or insurer with a
preexisting contractual obligation to
indemnify or defend a party to the civil
action, administrative proceeding, clai m or
cause of action.
This is a continuing obligation and within thir ty
(30) days of entering into a litigation financing
contract, the consumer or the consumer 's legal
representative must disclose and deliver any
subsequently entered into li tigation funding
agreements.
(2) The existence of consumer litigation funding
agreements and all participants or parties to
such a litigation funding agreement are
permissible subjects of discovery in any civil
action, administrative proceeding, claim or cause
of action to which consumer l itigation financing
is provided under the litigation funding
agreement.
(3) Litigation funding provided to commercial
enterprises in support of litigation strictly
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between commercial enterprises is subject to the
requirements of 12-3226(c) and Section 14A 3-809
–3-817. The funded commercial enterprise and its
legal representative shall also have the duties
set forth in 12-3226(c). A commercial enterprise
does not include a law firm or attorney
prosecuting or defending litigation .
2. LIMITATIONS ON FREQUENCY AND EXTENT.
a. By order, the court may alter the limits on the length
of depositions under Section 3230 of this title, on
the number of interrogatories under Section 3233 of
this title, on the number of requests to produce under
Section 3234 of this title, 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 ac cessible
because of undue burden or cost. On motion to compel
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 mad e, the
court may order discovery from such sources if the
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requesting party shows good cause, considering the
limitations of subparagraph c of this paragraph. The
court may specify conditions for the discovery.
c. On motion or on its own, the court shall l imit the
frequency or extent of discovery otherwise allowed if
it determines that:
(1) the discovery sought is unreasonably cumulative
or duplicative, or can be obtained from some
other source that is more convenient, less
burdensome, or less expensive,
(2) the party seeking dis covery 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 ma naging agent of a
corporation or a government official is served 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 dat e of the
deposition an affidavit t o the noticing party so
stating and identifying a person within the
corporation or government entity who has knowledge of
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the subject matter involved in the pending action.
Notwithstanding such affidavit, the noticing par ty may
proceed with the deposition , subject to the notice d
witness's right to seek a protective order.
3. TRIAL PREPARATION: MATERIALS.
a. Unless as provided by paragraph 4 of this subsection,
a party may not discover documents and tangible things
that are prepared in anticipation of lit igation or for
trial by or for another party or its representative,
including the other party 's attorney, consultant,
surety, indemnitor, insurer or agent. Subject to
paragraph 4 of this subsection, such materials may be
discovered if:
(1) they are otherwise discoverable under paragraph 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 mate rials, the
court shall protect against disclosure of the mental
impressions, conclusions, opinions or legal theories
of a party's attorney or other representative
concerning the litigation.
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c. A party or other person may, upon reques t 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 t his title apply to
the award of expenses. A previous statement is
either:
(1) a written statement that the person has signed or
otherwise adopted or approved, or
(2) a contemporaneous stenographic, mechanical,
electrical, or other recording, or a
transcription thereof, which re cites
substantially verbatim the person '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 ac quired or
developed in anticipation of litigation or for trial,
may be obtained only as follows:
(1) a party may, through interrogatories, require any
other party to identify each person whom that
other party expects to ca ll as an expert witness
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at trial and give the address at which that
expert witness may be located,
(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 witn esses
subject to scope of this 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
(3) in addition to taking the depositions of expert
witnesses the party may, through in terrogatories,
require the party who expects to call the expert
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 opi nion; 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 wit ness for
the testimony and prepara tion for the testimony;
and a listing of any other cases in which the
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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 purposes 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 re tained or
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 compensati on 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 expressed, or
(3) identify assumptions that the party 's attorney
provided and that the expert relied 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
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has been retained or specially employed by another
party in anticipation of litigation or to prepare for
trial and who is not e xpected to be called as a
witness at trial, except as provided 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 s ame subject
by other means.
d. Unless manifest injustice would result:
(1) the court shall require that the party seeking
discovery pay the expert a reasonable fee for
time spent in responding to discovery under
division (2) of subparagraph a of this parag raph
and subparagraph c of this pa ragraph, and
(2) the court shall require that the party seeking
discovery with respect to discovery obtained
under subparagraph c of this paragraph, pay the
other party a fair portion of the fees and
expenses reasonably in curred by the latter party
in obtaining facts and opinion s 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
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claiming that it is privileged or subject to
protection as trial prep aration material, the party
shall make the claim expressly and shall describe the
nature of the documents, communications, or things not
produced or disclosed in a manner that, without
revealing information itself privileged or prote cted,
will enable other parties to assess the applicability
of the privilege or protection.
b. If information produced in discovery is subject to a
claim of privilege or of protection as trial
preparation material, the par ty making the claim may
notify any party that received th e information of the
claim and the basis for it. After being notified, a
party shall promptly return, sequester, or destroy the
specified information and any copies the party has;
shall not use or disclose the information until the
claim is resolved; shal l 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 cl aim. The producing party shall
preserve the information until the claim is resolved.
This mechanism is procedural only and does not alter
the standards governing whether the information is
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privileged or subject to protection as trial
preparation material or 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, accompanied by a certification that the movant has in
good faith conferred or attempted to confer, e ither in person or by
telephone, with other affected part ies in an effort to resolve the
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 coun ty where the deposition is to be t aken
may enter any order which 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 o n specified 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 the party
seeking discovery,
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d. that certain matters not be inquired 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 o pened 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
h. that the parties simultaneous ly file specified
documents or information enclosed in se aled envelopes
to be opened as directed 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 d iscovery. The
provisions of paragraph 4 of subsection A of Section 3237 of this
title apply to the award of expenses incurred in relation 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,
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b. specific identification of the material which is to be
removed or withdrawn from the pu blic record, or which
is to be filed but not placed in the public record,
and
c. a requirement that any party obtaining a protective
order place the protected material in a sealed manila
envelope clearly marked with the caption and c ase
number and is clearly marked with the word
"CONFIDENTIAL", and stating the date the order was
entered and the name of the judge entering the order.
This requirement may also be satisfied by requiring
the party to file the documents pursuant to the
procedure for electronical ly filing 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 fil ing 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 appro priate action.
5. All documents produced or testimony g iven under a protective
order shall be retained in the office of counsel until required by
the court to be filed in the case.
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6. Counsel for the respective parties shall be responsible for
informing witnesses, as necessary, of the co ntents of the protecti ve
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 rec ord,
shall immediately present app lication to the court, seeking
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 c onvenience of
parties and witnesse s and in the interests of justice, 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 par ty.
E. SUPPLEMENTATION OF RESPONS ES. A party who has r esponded to
a request for discovery with a response that was complete when it
was made is under no duty to supplement the response to include
information thereafter acquired, except as follows:
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1. A party is under a duty seasonably t o supplement the
response with respect to any question directly addressed to:
a. the identity and location of persons having knowledge
of discoverable matters, and
b. the identity of each person expected to be called as
an expert witness at trial, the subj ect matter on
which the person is expected to testify, and the
substance of the testimony of the person;
2. A party is under a duty seasonably to amend a prior response
to an interrogatory, request for production, or requ est for
admission if the party obt ains information upon the basis of which:
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 corre ctive information has not
otherwise been made known to the other parties during
the discovery process or in writing; 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 commencement of an
action, the court may direct the attorneys for the parties to appear
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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 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 his attorney are unde r a duty to participat e 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 fo rth 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 d iscovery, 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. In preparing the plan for
discovery the court shall protec t the parties from excessive or
abusive use of discovery . An order shall be altered or amended
whenever justice so requires.
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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.
G. SIGNING OF DISCOVERY REQUESTS, 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 request, response or objection and state the
party's address. The signature of the attorney or party constitutes
a certification that the party has re ad 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 co nsistent with the Oklahoma
Discovery Code and warranted by existing law or a good faith
argument for the extension, modification or reversal of existing
law;
2. Interposed in good faith and not primarily to cause delay or
for any other improper purpose; a nd
3. Not unreasonable or unduly burdensome or expensive, given
the nature and complexity of the ca se, the discovery already had in
the case, the amount in controversy, and other values at stake in
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the litigation. If a request, response or objection is n ot 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 or der to pay to the
amount of the reasonable expenses occasioned thereby, including a
reasonable attorney fee.
SECTION 2. This act shall beco me effective November 1, 2023.
COMMITTEE REPORT BY: COMMITTEE ON JUDICIARY
April 11, 2023 - DO PASS AS AMENDED