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STATE OF OKLAHOMA
2nd Session of the 59th Legislature (2024)
CONFERENCE COMMITTEE
SUBSTITUTE
FOR ENGROSSED
HOUSE BILL NO. 2391 By: Culver of the House
and
Howard of the Senate
CONFERENCE COMMITTEE SUBSTITUTE
An Act relating to civil procedure; amending 12 O.S.
2021, Section 3226, which relates to general
provisions governing discovery; requiring production
of commercial litigation funding a greement upon
request; prohibiting admissibility of certain
information as eviden ce; requiring certain
certification with production of agreement; providing
exception; defining terms; providing for
codification; and providing an 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 discovery regarding
any matter that is relevant to any party’s claim or defense by one
or more of the following methods: Depositions upon oral examination
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or written questions; written interrogatories; production of
documents or things or permission to en ter upon land or other
property, for inspection and other purposes; physical and mental
examinations; requests for admission; authorizations for release of
records; and otherwise by court order upon showing of good cause.
Except as provided in this sectio n 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 computation of any category of damages
claimed by the disclosing party, making available for
inspection and copying the documents or other
evidentiary material, not privileged or protected from
disclosure, on which such computat ion is based,
including materials bearing on the nature and extent
of injuries suffered. Subject to subsection B of this
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
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medical records and bills, and, when relevant, a
release or authorization for employment and scholastic
records.
b. The following categories of proceedings are exempt
from initial disclosure under subparagraph a o f this
paragraph:
(1) an action for review of an administrative record,
(2) a petition for habeas corpus or other proceeding
to challenge a criminal convi ction or sentence,
(3) an action brought without counsel 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 be nefit
payments,
(6) an action by the United States to collect on a
student loan guaranteed by the Unit ed States,
(7) a proceeding ancillary to proceedings in other
courts, and
(8) an action to enforce an arbitration award.
c. Disclosures required under thi s paragraph shall be
made at or within sixty (60) days after service unless
a different time is set by stipulation or court order,
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or unless a party objects that initial disclosures are
not appropriate in the circumstances of the action and
states the objection in a motion filed with the court.
In ruling on the objection, the court s hall determine
what disclosures, if any, 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 ful ly 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.
B. DISCOVERY SCOPE AND LIMITS. Unless otherwise limited by
order of the court in acc ordance with the Oklah oma Discovery Code,
the scope of discovery is as follows:
1. IN GENERAL.
a. Parties may obtain discovery regarding any matter, not
privileged, which is r elevant to any party’s claim or
defense, reasonably calculated to lead to the
discovery of admissible evidence and proportional to
the needs of the case, considering the importance of
the issues at stake in the action, the amount in
controversy, the partie s’ relative access to relevant
information, the parties’ resources, the importan ce of
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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.
b. A party shall produce upon request pursua nt 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 indemnify or
reimburse for payments made to satis fy the judgment.
Information concerning the insurance agreement is not
by reason of disclosure admissible in evidence at
trial. For purposes of this sec tion, an application
for insurance shall not be treated as a part of an
insurance agreement.
c. A party shall produce upon request , pursuant to
Section 3234 of this title, any commercial litigation
funding agreement as defined in Section 2 of this act.
Information related to the commercial litigation
funding agreement is not by reaso n of disclosure
admissible as evidence at trial. Production of a
commercial litigation funding agreement shall include
a certification by sworn affidavit by the producing
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party as to whether any funds encumbered by the terms
of the agreement have been or will be sourced from a
foreign state or agency or instrumentality of a
foreign state as defined in 22 U.S.C., Section 611, or
28 U.S.C., Section 1603 as amended. Certification
that discloses that a foreign state or agency or
instrumentality of a foreign s tate is such a source
shall include the identity of the foreign state,
agency, or instrumentality that is the source of the
funds. Such certification shall be supplemented or
corrected by the producing party within thirty (30)
days in the event the certif ication becomes incomp lete
or inaccurate in a material respect. A consumer
litigation funding agreement as defined in Section 3 -
801 of Title 14A of the Oklahoma Statutes shall be
exempt from the provisions of this subparagraph.
d. If a commercial litigati on funding agreement a s
defined in subsection c of this section, has been
requested, a party shall also produce, upon request
pursuant to Sections 3234 and 3236 of this title, a
certification by sworn affidavit by the producing
party that identifies whethe r the party is an enti ty
controlled by a foreign adversary. The certification
shall also include an admission or denial as to
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whether the party is under the control or direction of
an entity controlled by a fore ign adversary and
whether the party will all ow access to any docum ents
or information arising in the litigation not generally
available to the public to an entity controlled by a
foreign adversary. In the event that the producing
party admits that an entit y controlled by a foreign
adversary may access any documents or i nformation
arising in the litigation not generally available to
the public, the party shall specify the persons who
will have access to such documents or information.
Further, if the party re ceives funding pursuant to a
commercial litigation funding agree ment as defined in
Section 3226.2 of this title, the certification shall
include a statement that the funding was not sourced
from an entity controlled by a foreign adversary.
2. LIMITATIONS ON FREQUENCY AND EXTENT.
a. By order, the court may alter the li mits 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 S ection 3236 of this
title.
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b. A party is not required to provide discovery of
electronically stored information from sources t hat
the party identifies as not reasonably accessible
because of undue burden or cost. On motion to compel
discovery or for a pro tective 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 discovery from such sources if the
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 limit 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 conve nient, less
burdensome, or less expensive,
(2) the party seeking discovery has had ample
opportunity to obtain the information by
discovery in the action, or
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(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 serve d 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 within the
corporation or government entity who has knowledge of
the subject matter involved in the pending action.
Notwithstanding such affidavit, the n oticing party may
proceed with the deposition, subject to the noticed
witness’s right to seek a protective o rder.
3. TRIAL PREPARATION: MATERIALS.
a. Unless as provided by paragraph 4 of this subsection,
a party may not discover documents and tangible th ings
that are prepared in anticipation of litigation or for
trial by or for another party or its representat ive,
including the other party’s attorney, consultant,
surety, indemnitor, insurer or agent. Subject to
paragraph 4 of this subsection, such materi als may be
discovered if:
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(1) they are otherwise discoverable under paragraph 1
of this subsection, and
(2) the party shows that i t 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 against d isclosure of the menta l
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 pre vious
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 par agraph 4 of
subsection A of Section 3237 of this 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 recites
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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 provis ions of
paragraph 1 of this subsection and acquired 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 call as an expert witness
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 requeste d
disclosure, may depose any such expert witnesses
subject to scope of this section. Prior to
taking the deposition the party mus t 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 interrogatories,
require the party who expects to call the expert
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witnesses to state th e 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 l ist of all
publications authored by the expert witness
within the preceding ten (10) years; the
compensation to be paid to the expert witness for
the testimony and preparation for the testimony;
and a listing of any other cases in whi ch 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 purposes of the
limitation on the numbe r of interrogatories i n
Section 3233 of this title.
b. The protection provided by paragraph 3 of this
subsection extends to communications between t he
party’s attorney and any expert witness retained or
specially employed to provide expert testimony in the
case or whose duties as the party’s employee regularly
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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 expe rt 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 d eposition,
discover facts known or opinions held by an expert who
has been retained or specially employed by another
party in anticipation of litiga tion or to prepare for
trial and who is not expected 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 opinio ns on the same subject
by other means.
d. Unless manifest injustice would result:
(1) the court shall requir e that the party seeki ng
discovery pay the expert a reasonable fee for
time spent in responding to discovery under
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division (2) of subparagraph a of this paragraph
and subparagraph c of this paragraph, and
(2) the court shall require that the party seeking
discovery with respec t to discovery obtained
under subparagraph c of this paragraph, 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.
5. CLAIMS OF PRIVILE GE OR PROTECTION OF TR IAL 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 preparation 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 protected,
will enable other parties to assess the applicability
of the privilege or prote ction.
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 information of the
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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; shall take reasonable steps to
retrieve the information if the par ty has disclosed it
before being notified; and may promptly present the
information to the court under seal for a
determination of the claim. The producing party shall
preserve the information until the claim is resolved.
This mechanism is procedural onl y and does not alter
the standards governing whether the information is
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 p erson from whom discovery
is sought, accompanied by a certification that the movant has in
good faith conferred or attempted t o confer, either in person or by
telephone, with other affected parties 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 county where the deposition is to be taken
may enter any order which justice requires to protect a pa rty or
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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 specified terms
and conditions, includ ing a designation of t he time,
place or the allocation of expenses,
c. that the discovery may be had only by a method of
discovery other than that s elected by the party
seeking discovery,
d. that certain matters not be inquired into, or that the
scope of the disclosure or disco very 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 oth er confidential resear ch,
development or commercial information not be disclosed
or be disclosed only in a designated way, and
h. that the parties simultaneously file specified
documents or information enclosed in sealed envelopes
to be opened as directed by the court.
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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 Sec tion 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 o f
removing any material obtained by discovery from the public record
shall contain the following:
a. a statement that the court ha s determined it is
necessary in the interests of justice to remove the
material from the public record,
b. specific identification of the material which is to be
removed or withdrawn from the public record, or which
is to be filed but not placed in the pub lic 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 case
number and is clearly marked with the word
“CONFIDENTIAL”, and stating the date t he 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 electronically filing sealed or
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confidential document s approved for electro nic 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 whic h has received the protective order
shall be responsible for promptly presenting the order to
appropriate court clerk personne l for appropriate action.
5. All documents produced or testimony given under a protective
order shall be retained in the office o f 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 whi ch a party intends to seek a
protective order removing material from the public record, the
plaintiff(s) and defendant(s) shall be initially designa ted on the
petition under pseudonym such as “John or Jane Doe”, or “Roe”, and
the petition shall clearly ind icate that the party d esignations are
fictitious. The party seeking confidentiality or other order
removing the case, in whole or in part, from the public record,
shall immediately present application to the court, seeking
instructions for the conduct of the case, including co nfidentiality
of the records.
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D. SEQUENCE AND TIMING OF DISCOVERY. Unless the parties
stipulate or the court orders otherwis e for the convenience of
parties and witnesses 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 an y other party.
E. SUPPLEMENTATION OF RESPONSES. A party who has responded to
a request for discovery with a response that was co mplete when it
was made is under no duty to supplement the response to include
information thereafter acquired, except as foll ows:
1. A party is under a duty seasonably to 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 c alled as
an expert witness at trial, the subject matter on
which the person is expected to testify, and the
substance of the testi mony of the person;
2. A party is under a duty seasonably to amend a prior response
to an interrogatory, request for producti on, or request for
admission if the party obtains information upon the basis of which:
a. (1) the party knows that the response wa s incorrect
in some material respect when made, or
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(2) the party knows that the response, which was
correct when made, is no l onger true in some
material respect, and
b. the additional or corrective information has not
otherwise been made known to the othe r 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 pri or responses.
F. DISCOVERY CONFERENCE. At any time after commencement 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 part y if the motion includ es:
1. A statement of the issues as they then appear;
2. A proposed plan and schedule of discovery;
3. Any limitations prop osed to be placed on discovery;
4. Any other proposed orders with respect to discovery; and
5. A statement showing that the atto rney 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 disco very 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 mat ters set forth in the
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motion shall be served not later than ten (10) days after service of
the motion.
Following the discovery con ference, the court shall enter an
order tentatively identifying the issues for discovery purposes,
establishing a plan and sch edule for discovery, setting limitations
on discovery, if any; and determining such other matters, including
the allocation of exp enses, as are necessary for the proper
management of discovery in the action. In preparing the plan for
discovery the court s hall protect the parties from excessive or
abusive use of discovery. An order shall be altered or amended
whenever justice so req uires.
Subject to the right of a party who properly moves for a
discovery conference to prompt convening of the conference, th e
court may combine the discovery conference with a pretrial
conference.
G. SIGNING OF DISCOVERY REQUESTS, RESPONSES AND OBJECTIO NS.
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 read the request, response or
objection, and that it is:
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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 reversal of existing
law;
2. Interposed in good faith and not primarily to cause delay or
for any other improper purpose; and
3. Not unreasonable or unduly burdensome or expensive, given
the nature and complexity of the case, the discovery already had in
the case, the amount in contro versy, and other values at stake in
the litigation. If a request, response or objection is not signed,
it shall be deemed ine ffective.
If a certification is made in violation of the provisions of
this subsection, the court, upon moti on or upon its own ini tiative,
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 reasonabl e expenses occasioned thereby, including a
reasonable attorney fee.
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3226.2 of Title 12, unless there
is created a duplication in numbering, r eads as follows:
A. As used in the Oklahoma Discovery Code:
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1. “Commercial litigation funder ” means any person or entity,
other than an attorney p ermitted to charge a contingent fee
representing a party, that enters into a contract establishing a
right to receive compensation that is contingent on and sourced from
any proceeds of the civil action by settlement, judgment, or
otherwise. Commercial li tigation funder shall not include a
consumer litigation funder as defined in Section 3 -801 of Title 14A
of the Oklahoma Statutes; and
2. “Commercial litigation funding agreement ” means an agreement
under which the commercial litigation funder is granted a right to
receive compensation contingent on and sourced from any proceeds of
a civil action by settlement, judgment, or otherwise . A commercial
litigation funding agreement shall not include:
a. funding provided by an attorney to a cli ent as
authorized by the Oklahoma Rules of Professional
Conduct, Appendix 3–A of Chapter 1 of Title 5 of the
Oklahoma Statutes, unless such funds are encumbered
pursuant to a commercial litigation funding agreement;
or
b. a consumer litigation funding agreement as defined in
Section 3-801 of Title 14A of the Oklahoma Statutes.
3. “Entity controlled by a foreign adversary” means, with
respect to a person, whether a human being or bodies politic or
corporate, that such person is:
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a. a foreign person that is a national of, is
headquartered in, has its principal place of business
in, or is organized under the law of a foreign
adversary country,
b. a body corporate with respect to which a foreign
person or combination of foreign persons described in
subsection a directly or indirectly own s at least 20
percent (20%) of such body, or
c. a person subject to the direction or control of a
foreign person or entit y described in subsections a or
b.
4. “Foreign adversary country” means a country identified in 10
U.S.C., Section 4872(d)(2).
SECTION 3. This act shall become effective November 1, 202 4.
59-2-11166 AO 05/23/24