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Rule 26.02.Scope of discovery.

Current through June 18, 2026 · Last verified July 9, 2026

In one sentenceRule 26.02 defines what parties can discover in a Kentucky case: any non-privileged, relevant matter regardless of admissibility, insurance coverage information, trial-preparation materials protected absent a substantial-need showing, and expert opinions subject to identification, deposition, and fee-shifting rules.

Full Text of Rule 26.02

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(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.
(2) Insurance Agreements. A party may obtain discovery of 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. 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) Trial Preparation: Materials.
(a) Subject to the provisions of paragraph (4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (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 his 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 his case and that he 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.
(b) 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 37.01
(4) apply to the award of expenses incurred in relation to the motion. For purposes of this subparagraph (b), a statement previously made is (i) a written statement signed or otherwise adopted or approved by the person making it, or (ii) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.
(4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of paragraph (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, and 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.
(ii) After a party has identified an expert witness in accordance with paragraph (4)(a)(i) of this rule or otherwise, any other party may obtain further discovery of the expert witness by deposition upon oral examination or written questions pursuant to Rules 30 and 31. The court may order that the deposition be taken, subject to such restrictions as to scope and such provisions, pursuant to paragraph (4)(c) of this rule, concerning fees and expenses as the court may deem appropriate.
(b) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35.02 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.
(c) 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 paragraphs (4)(a)(ii) and (4)(b) of this rule, and (ii) with respect to discovery obtained under paragraph (4)(a)(ii) of this rule the court may require, and with respect to discovery obtained under paragraph (4)(b) 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.
End

Amendment History

(Amended effective October 1, 1971; amended October 18, 1977, effective January 1, 1978; amended November 21, 1977, effective January 1, 1978; amended October 29, 2004, effective January 1, 2005.)

Plain-English Summary

Rule 26.02 sets the outer boundary of what a party can discover in a Kentucky lawsuit. The test is relevance to the subject matter of the pending action, not just to the claims or defenses of the party asking for it, and it reaches the existence, description, and location of documents, things, and people with knowledge of the case. Information does not have to be admissible at trial to be discoverable; it only has to appear reasonably calculated to lead to admissible evidence. That makes the scope of discovery wider than the scope of what a jury will eventually hear.

Insurance coverage gets its own carve-out. A party can discover whether an insurance agreement exists and what it covers when that coverage might pay all or part of a judgment in the case, or reimburse someone for paying one. The insurance information itself is not admissible at trial, and an application for insurance is not treated as part of the agreement for these purposes.

Documents and tangible things prepared in anticipation of litigation or for trial get separate treatment as trial-preparation materials. A party can reach another party's, or that party's representative's, prepared materials only by showing a substantial need for them and an inability, without undue hardship, to get their substantial equivalent elsewhere. Even then, a court must shield the mental impressions, conclusions, opinions, and legal theories an attorney or other representative built into those materials. A party's own prior statement about the case is available without that showing, and a non-party can request a copy of their own statement and go to court if it is refused.

Expert discovery works on a two-track system. A party can use interrogatories to make an opponent identify each expert expected to testify at trial, the subject of that testimony, and a summary of the facts, opinions, and grounds behind it; once identified, that expert can be deposed under Rules 30 and 31, subject to court-ordered limits. An expert retained for trial preparation but not expected to testify is largely off-limits, reachable only through a Rule 35.02 examination report or a showing of exceptional circumstances. Kentucky also builds in cost-shifting: the party seeking expert discovery generally pays the expert's reasonable fee for the time spent, and may have to cover part of the other side's cost of developing that expert's opinions, unless following that rule would work a manifest injustice.

Frequently Asked Questions

What is the scope of discovery in a Kentucky lawsuit?

Under Rule 26.02, a party can discover any non-privileged matter relevant to the subject matter of the pending action, whether it relates to that party's claims or defenses or to any other party's. The information does not need to be admissible at trial; it only needs to appear reasonably calculated to lead to admissible evidence.

Can I find out about the other side's insurance coverage in a Kentucky case?

Yes. Rule 26.02(2) allows discovery of the existence and contents of an insurance agreement that might cover a judgment in the case. That information is not itself admissible at trial, and an insurance application is not considered part of the agreement.

Can I depose the other side's expert witness in Kentucky?

It depends on whether the expert is expected to testify at trial. Rule 26.02(4) lets a party identify a testifying expert through interrogatories and then depose that expert under Rules 30 and 31. An expert retained for trial preparation but not expected to testify can be reached only through a Rule 35.02 report or a showing of exceptional circumstances.

Source & verification. The rule text is reproduced verbatim from the official Kentucky Rules of Civil Procedure (Ky. R. Civ. P. 26.02). Prescribed by the Supreme Court of Kentucky (Ky. Const. § 116). The plain-English summary is original and written by us. Last verified July 9, 2026. · Official source
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