Rule 35. Physical and Mental Examinations
(a) Order for Examination.
(1) In General. The court where the action is pending may order a party whose mental or physical condition—including blood group—is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in the party’s custody or under the party’s legal control.
(2) Motion and Notice; Contents of the Order.
(A) The order may be made only on motion for good cause and on notice to all parties and the person to be examined.
(B) The order must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it. The examination must take place in an appropriate professional setting in the judicial district in which the action is pending, unless otherwise agreed by the parties or ordered by the court.
(3) Recording the Examination. On request of a party or the examiner, the court may, for good cause shown, require as a condition of the examination that the examination be audio recorded. The party or examiner who requests the audio recording must arrange and pay for the recording and provide a copy of the recording on written request. The examiner and all persons present must be notified before the examination begins that it is being recorded.
(4) Observers at the Examination. The party against whom an examination is sought may request as a condition of the examination to have an observer present at the examination. When making the request, the party must identify the observer and state his or her relationship to the party being examined. The observer may not be the party’s attorney or anyone employed by the party or the party’s attorney.
(A) The party may have one observer present for the examination, unless:
(i) the examination is a neuropsychological, psychological, or psychiatric examination; or
(ii) the court orders otherwise for good cause shown.
(B) The party may not have any observer present for a neuropsychological, psychological, or psychiatric examination, unless the court orders otherwise for good cause shown.
(C) An observer must not in any way interfere, obstruct, or participate in the examination.
(b) Examiner’s Report.
(1) Request by the Party or Person Examined. Unless otherwise ordered by the court or discovery commissioner for good cause, the party who moved for the examination must, upon a request by the party against whom the examination order was issued, provide a copy of the examiner’s report within 30 days of the examination or by the date of the applicable expert disclosure deadline, whichever occurs first.
(2) Contents. The examiner’s report must be in writing and must set out in detail the examiner’s findings, including diagnoses, conclusions, and the results of any tests.
(3) Request by the Moving Party. After delivering the reports, the party who moved for the examination may request—and is entitled to receive—from the party against whom the examination order was issued like reports of all earlier or later examinations of the same condition. But those reports need not be delivered by the party with custody or control of the person examined if the party shows that it could not obtain them.
(4) Waiver of Privilege. By requesting and obtaining the examiner’s report, or by deposing the examiner, the party examined waives any privilege it may have—in that action or any other action involving the same controversy—concerning testimony about all examinations of the same condition.
(5) Failure to Deliver a Report. The court on motion may order—on just terms—that a party deliver the report of an examination. If the report(s) is not provided, the court may exclude the examiner’s testimony at trial.
(6) Scope. Rule 35(b) also applies to an examination made by the parties’ agreement, unless the agreement states otherwise. Rule 35(b) does not preclude obtaining an examiner’s report or deposing an examiner under other rules.
Advisory Committee Note—2019
Amendment Subsection (a). Rule 35(a) expressly addresses audio recording and attendance by an observer at court-ordered physical and mental examinations. A court may for good cause shown direct that an examination be audio recorded. A generalized fear that the examiner might distort or inaccurately report what occurs at the examination is not sufficient to establish good cause to audio record the examination. In addition, a party whose examination is ordered may have an observer present, typically a family member or trusted companion, provided the party identifies the observer and his or her relationship to the party in time for that information to be included in the order for the examination. Psychological and neuropsychological examinations raise subtler questions of influence and confidential and proprietary testing materials that make it appropriate to condition the attendance of an observer on court permission, to be granted for good cause shown. In either event, the observer should not be the attorney or employed by the attorney for the party against whom the request for examination is made, and the observer may not disrupt or participate in the examination. A party requesting an audio recording or an observer should request such a condition when making or opposing a motion for an examination or at a hearing on the motion.
Subsection (b). A Rule 35(b) report should contain opinions concerning the physical or mental condition in controversy for which the examiner is qualified to render an opinion. The disclosure deadlines contemplate that the report will be provided by the initial expert disclosure deadline, assuming that deadline is within 30 days of the examination. There may be rare circumstances that would justify a rebuttal Rule 35 examination. Any report prepared from a rebuttal examination must be timely disclosed by the rebuttal expert disclosure deadline or within 30 days of the examination, whichever occurs first. If the expert disclosure deadlines have passed, a party seeking a Rule 35 examination must move to reopen the applicable expert disclosure deadlines unless otherwise stipulated in writing by the parties. To reopen an expert disclosure deadline, the moving party must demonstrate excusable neglect or changed circumstances, such as where there has been an unanticipated change in a party’s physical or mental condition.