The plaintiff brought a motion concerning the order of examinations for discovery in a personal injury action arising from a residential elevator failure.
The defendants argued they were entitled to examine the plaintiff first because they had served sworn affidavits of documents before the plaintiff.
The court held that the parties had, by their conduct and correspondence, agreed to a discovery plan under Rule 29.1.03 of the Rules of Civil Procedure that scheduled examinations of the defendants before the plaintiff.
Such agreement constituted “agreeing otherwise” within the meaning of Rule 31.04, superseding the default rule governing the order of discovery.
The court ordered that examinations proceed according to the discovery plan and also addressed ancillary document production issues.
