RULES OF CIVIL PROCEDURE

STATE AND FEDERAL

THEN AND NOW

January 2009

No Handout Materials

• CD format: too big to print and bring• Will post to website: UM Law/faculty/Ford• Will post this PowerPoint as well, for

highlights• 3 parts

– List of Montana rules which differ– Montana rules, showing differences– Federal rules, showing differences

History of Federal Rules

• Pre-1938: each federal court followed civil procedure of state in which it sat

• Rules Enabling Act (1934) authorized Supreme Court to adopt rules of procedure for the lower federal courts

• 1938 Federal Rules of Civil Procedure

Limits on Federal Rules

• Rules Enabling Act: “shall not abridge, modify, or enlarge substantive law”

• Federal Rules challenged frequently as violating this restriction e.g. Sibbach v. Wilson (1942)

• U.S. Supreme Court has never found a rule invalid on this basis

Erie Doctrine• 1789 Rules of Decision Act• State law to provide “rules of decision”• Apply in all federal diversity cases• Not applicable to federal question cases• Erie v. Pennsylvania Ry.

– State substantive law = “outcome determinative”

– Federal procedure

“Substantive” for Erie: State

• Negligence: Erie Ry. (duty of ry. to trespasser)

• Contributory negligence

• Statute of limitations

• Conflict of Laws/choice of law: Klaxon

“Procedural” for Erie: federal

• Allocation of judge/jury role

• F.R.Civ.P.• F.R.App.P.

“New” (1939) Federal Rules

• Transnational: applied to every federal district court across U.S.

• Downside: lawyers in single state had to master two procedural systems to practice in state and federal courts there

• Meant to correct deficiencies in old procedural regimes

Major Innovations of F.R.Civ.P.

• Shortened pleading phase: – Notice pleading– 2-stage pleading the norm; before, 3-4 stages

• Added discoveryfull disclosure of information to both

sides key to goal of justice through trial on the merits

• Increased judicial oversight: e.g., pretrial conferences

Overall Purpose of F.R.Civ.P.

• Rule 1: “These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

State Adoption of F.R.Civ.P.

• 1939-2007 adoption of rules based largely on federal model:

• “Wait and watch”• Late ‘80s survey: 22 states plus D.C., number is

quoted even in very current sources. • 2001 article: only 8/22 states had adopted

enough of the subsequent amendments to keep them in-line with the then-current rules: Minnesota, Montana, North Dakota, Tennessee, Utah, Vermont, Washington, and West Virginia.

Tribal Adoption of FRCivP• “I can’t find any statistics at all. I can find

discussions that mention that tribes have adopted them, but nothing with any sort of numbers. I can’t even find enough in the discussions to make an educated guess.”

• Montana Tribes which have Civil Procedure rules based on the F.R.Civ.P:– CS&K and Crow.– Unclear: Blackfeet, Rocky Boy’s, Northern Cheyenne,

Fort Belknap, Fort Peck?

Montana Rules of Civil Procedure

• Legislature created the Civil Rules Commission in 1959, repealed in 1977

• Montana Supreme Court adopted original rules Dec. 12, 1960

• Legislature enacted 1961, became effective January 1,1962

SIMILAR TO, BUT NOT IDENTICAL WITH, FEDERAL RULES: “They’re not the boss of us”

Modeled on F.R.Civ.P.

• “As the notes of the Civil Rules Commission and the Advisory Committee indicate, many of the Montana Rules of Civil Procedure are patterned after the Federal Rules of Civil Procedure… The Civil Rules Commission, the Advisory Committee, and the compiler have frequently compared the M.R.Civ.P. to the F.R.Civ.P. and have occasionally made reference to the notes or report of the "Federal Advisory Committee…”

Montana Rule Research Route

• Read the rule • Montana Commission Comment• Montana Supreme Court cases• Compare to Federal Rule• Only if they are similar:• Federal Commission Comments• Federal Treatise• Federal Cases

Major divergences between Montana and Federal

• Rule 4: time for service of process

• Rule 11: certification requirements and consequences of violation

• Rule 26: discovery

• Rule 35: waiver of doctor-patient privilege

Time for Service of Process

• Montana: 3 years: M.R.Civ.P. 4E

–Replaces former 41e

• Federal: 120 days: F.R.Civ.P. 4m

Rules 11

• Montana and federal rules same until 1983

• Big federal amendment to insert “teeth” in 1983

• Montana followed suit

• Several federal amendments 1993-2007, Montana still has 1993 version

Montana Rule 11

• Certification provision more general

• Mandatory sanctions

• Sanctions usually monetary, paid to opponent

• Rule does not articulate procedure

• Goodover v. Lindey’s requires separate motion, notice, hearing

Current Federal Rule 11

More specific certification provision

• No mandatory sanction for violation

• Safe harbor provision

• Procedure specified in rule

• Sanctions, if imposed, “limited to what is sufficient to deter repetition”

• No profit for moving party

Discovery

• Orthodox methods of discovery in both state and federal rules:– Interrogatories– Depositions– Requests for Production– Requests for Admission– Mental and Physical Exams

Federal Mandatory Prediscovery Disclosure

• Rule 26a “General Provisions Governing Discovery; Duty of Disclosure”

• Initial Mandatory Disclosure• Disclosure of Expert Testimony• Pretrial Disclosures of witnesses and

exhibits; pretrial objections to exhibits

Mandatory Discovery Planning

• FRCivP 26f• Parties required to confer 21 days

before scheduling conference or order under 16b

• Discuss/plan disclosure process/electronic issues/privilege-work product issues

• Written report to court

Federal Expert Disclosure

• 26a2• Witness must prepare and sign written report• Opinions and bases• Data considered• Exhibits • Qualifications, including publications past 10

years• Compensation• Prior cases in past 4 years, trial or deposition

Electronic Discovery

• Recent federal amendments to deal with discovery of information which is stored electronically

• Affects several federal rules

• Upshot: parties entitled to discover electronic information

Montana Supreme Court2/28/2007

• The Advisory Commission on Rules of Civil and Appellate Procedure appointed a subcommittee of the Commission to study whether we should amend the Montana Rules with respect to the discovery of electronic information to conform more closely with recent amendments to the Federal Rules of Civil Procedure on this same issue.… The Commission unanimously supports amending Rule 26 of the Montana Rules of Civil Procedure and the related rules to facilitate electronic discovery.

Adopts “Majority Proposal”• We agree with the Commission that the

Montana Rules of Civil Procedure should be amended to provide more specific guidance with respect to the discovery of electronic information. The Majority Proposal provides the appropriate mechanism for this guidance.

• IT IS ORDERED that Majority Proposal to

Amend Rule 26 of the Montana Rules of Civil Procedure and Related Rules to Facilitate Electronic Discovery is ADOPTED;

Minority Proposal too much

• We recognize and acknowledge the concerns of discovery abuse raised by the Minority Proposal. [But] neither the Federal Rules nor the rules of civil procedure of any other jurisdiction, have imposed the types of responsibilities and obligations contained in the Minority Proposal.

We likewise deem it unnecessary to adopt these types of responsibilities obligations [sic] at this time. In so doing, we emphasize that we retain the ability to modify the rules regarding the discovery of electronic information in the future if practice dictates the need …

Montana Rules Affected by 2007 Electronic Discovery Amendments

• 16b: Scheduling Order• 26b: Discovery Scope• 26f: Discovery Conference• 33b: Interrogatories: option to produce

business records• 34: Requests for Production• 37: Discovery Sanctions• 45: Subpoenas

Federal Amendments Effective 12/1/07= NOW!

• Supreme Court approved amendments April 30, 2007

• Congress took no action to change• Thus, effective 12/1/07• govern all proceedings commenced

on or after December 1, 2007, and "insofar as just and practicable" all proceedings then pending.

Restyled all Federal Rules

• “Restyled Civil Rules 1-86, Restyled Illustrative Civil Forms 1 through 82, and new Civil Rule 5.2”

• Text of the amended rules and extensive supporting documentation can be found at:

• www.uscourts.gov/rules/congress0407.htm

Comprehensive Style Revision

• Series of comprehensive revisions to simplify, clarify, and make more uniform all of the federal procedural rules

• Also some style-substance amendments: minor, uncontroversial amendments correcting ambiguities and inconsistencies revealed during the style review

Example of Restyled Rule

• Old 8e2

• “When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements.”

New 8e2, restyled

• “If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.”

Style-Substance Federal Changes now effective

• “Style-substance track”• Rules 4k, 9h, 11a,14b, 16c, 26g, 30b,

31c, 40, 71.1d, and 78a• 11a/26g: include email address in all

filings and discovery documents– Note: “does not of itself signify consent to

filing or service by e-mail”

New F.R.Civ.P. 5.2• Civil Rules version of the E-Government

Rules• Rule 5.2. Privacy Protection For Filings

Made with the Court (a) Redacted Filings. Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individual’s social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number, a party or nonparty making the filing may include only:

• (1) the last four digits of the social-security number and taxpayer-identification number; (2) the year of the individual’s birth; (3) the minor’s initials; and (4) the last four digits of the financial-account number. …

• (b) Exemptions…

• (c) Limitations on Remote Access to Electronic Files; Social-Security Appeals and Immigration Cases. Unless the court orders otherwise, in an action for benefits under the Social Security Act, and in an action or proceeding relating to an order of removal, to relief from removal, or to immigration benefits or detention, access to an electronic file is authorized as follows: (1) the parties and their attorneys may have remote electronic access to any part of the case file, including the administrative record;

• (2) any other person may have electronic access to the full record at the courthouse, but may have remote electronic access only to: (A) the docket maintained by the court; and (B) an opinion, order, judgment, or other disposition of the court, but not any other part of the case file or the administrative record. (d) Filings Made Under Seal.

The court may order that a filing be made under seal without redaction. The court may later unseal the filing or order the person who made the filing to file a redacted version for the public record. (e) Protective Orders.

• For good cause, the court may by order in a case: (1) require redaction of additional information; or (2) limit or prohibit a nonparty ﾕ s remote electronic access to a document filed with the court. (f) Option for Additional Unredacted Filing Under Seal. A person making a redacted filing may also file an unredacted copy under seal. The court must retain the unredacted copy as part of the record.

• (g) Option for Filing a Reference List. A filing that contains redacted information may be filed together with a reference list that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed.

• The list must be filed under seal and may be amended as of right. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information. (h) Waiver of Protection of Identifiers. A person waives the protection of Rule 5.2(a) as to the person’s own information by filing it without redaction and not under seal.

Upcoming Federal Amendments

• Published for comment • Rules 8, 13, 15, 48, new 62.1, 81• Proposed Time-Computation Amendments

to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure

To see proposed amendments: see http://www.uscourts.gov/rules/

To comment electronically: Rules_Comments@ao.uscourts.gov

New U.S.District Court Local Rules

• Extensive Revisions effective January 7, 2008

• Available at website:

• http://www.mtd.uscourts.gov/rules.htm

MT Advisory Committee Now

• Following the enactment of the rules, the Legislature created an Advisory Committee on Rules to advise the Supreme Court on subsequent amendment of the adopted rules. The Advisory Committee was created by Ch. 16, L. 1963, and continues to advise the court in a manner similar to the original Commission, under the authority of 3-2-702, MCA, and Rule 86(a), M.R.Civ.P.

Montana Civil Rule Commission Currently Active

• Jim Goetz, Bozeman, chair• Undertaking study of Montana Rules in

comparison to newest version of Federal Rules to determine which/whether Montana Rules should follow federal amendments

• Comments/observations to Chair• Committee Members currently reviewing each

rule and will give first drafts to Committee this month

Recent Montana S Ct Orders

• Website: http://www.courts.mt.gov/newrules.asp

• Sept. 2008: Uniform District Court Rule 9 re: jury questionnaires: Access to answers limited to parties and court, to be destroyed after jury term over

Uniform District Ct Rules changed 6/08

On June 19, 2003, this Court ordered the Commission on Uniform District Court Rules to meet and address the question of trial court delay. …On July 30, 2007, Mr. Grant advised the Court that the Uniform District Court Rules Commission and the District Court Council had met and that the Commission had unanimously voted to resubmit the proposed rule changes for the Court ﾕ s consideration. On November 13, 2007, the Court published the proposed rule changes and provided a ninety-day comment period.

1. The proposed amendments to Rules 1, 2, 4 and 5 are hereby adopted.

2. Adoption of proposed new Rules 3, 11 and 12 is hereby rejected without prejudice to submission at a later date.

3. The Uniform District Court Rules, as amended hereby and attached to this Order, shall become effective on June 1, 2008.

DATED this 19th day of March, 2008.

UDCR rules changed• Most all of the filed comments stated that, unless

the District Courts were given further resources, including additional judges, the courts were not in a position to comply with the suggested time constraints set forth in proposed Rules 3, 11 and 12. It was also noted that those new rules are premature until such time as the District Court performance standards are completed and until the 2009 Legislative Session has had an opportunity to address any requests for additional resources for the District Courts.

Summary 08 UDCR changes• Rule 1. Form of papers presented for

filing.• Rule 2. Motions. • Rule 4. Filing of discovery. Commission

Comment: “Although not specifically prohibited by this rule, in line with not filing discovery it is also is not necessary to file a notice of taking of deposition, notice of serving discovery, notice of serving responses to discovery, or any other discovery-related notice.”

UDCR affected ‘08, cont’d

• Rule 5. Pre-trial order and pre-trial conference.

MRCivP 54b Certification

Montana Supreme Court Order 12/12/07:

“M. R. Civ. P. 54(b) permits a court faced with multiple parties or multiple claims to enter a final judgment ‘as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.’ Satterlee v. Lumberman’s Mutual Casualty Company, 2007 MT 325…

…Under M. R. App. P. 4(4)(b) and 6(6), appeals certified as final pursuant to M. R. Civ. P. 54(b) are initially treated differently from other appeals. For that reason, Forms 1 and 2 appended to the Montana Rules of Appellate Procedure provide that the appellant or cross-appellant certify that the appeal or cross-appeal ‘_____is/is not_____’ from a judgment certified as final under M. R. Civ. P. 54(b)…

…Obviously, most appeals and cross-appeals are not from judgments certified as final under M. R. Civ. P. 54(b). And, while it would seem to go without saying, we expect counsel to actually determine whether their appeal or cross-appeal involves a judgment certified as final under M. R. Civ. P. 54(b). It is not acceptable practice to certify that every judgment is final under M. R. Civ. P. 54(b) as a number of attorneys have when the judgment appealed from has not been so certified by a district court.

…Nor is it acceptable practice for attorneys to draft a form of notice of appeal that certifies that every appeal is from a judgment certified as final pursuant to M. R. Civ. P. 54(b). Finally,and it should embarrass some that we even need to say this,the certification statements on Forms 1 and 2 include blank spaces and alternative statements, e.g., ‘_____is/is not_____.’ It was and is this Court’s intention that counsel check [ X] or [X] whichever alternative statement is true, not simply include both statements, albeit without the blanks, in his or her form notice of appeal.

…This procedure is to be followed for each of the other certification statements with blanks as well. Therefore, in order to obviate this Court wasting its limited time and resources reviewing notices of appeal and cross-appeal that do not involve appeals from judgments actually certified as final under M. R. Civ. P. 54(b)

THE ORDER• IT IS ORDERED that, upon filing a notice of

appeal or cross-appeal which improperly certifies that the appeal is from a judgment certified as final under M. R. Civ. P. 54(b), the Clerk of this Court shall notify the person filing the notice to file a corrected notice of appeal or cross-appeal on Form 1 or 2 within eleven (11) days or face dismissal of the appeal or cross-appeal. … If the corrected notice is not timely filed, the Clerk shall refer the matter to this Court. The Clerk’s costs of notice, postage and photocopying shall be paid by the person filing the corrected notice at the time it is filed.

MT Rules for Public Access and Privacy to Court Records

• Effective 7/1/08In 2005, the Montana Supreme Court began the process to establish the policy and rules to govern electronic access to Montana's Court Records… Montana Supreme Court Order No. AF 06-0377 adopted the Rules Relating to the Privacy and Public Access to Court Records in Montana. These rules will be referred to as Privacy Rules.

Synopsis of Privacy Rules• Court records include any document,

information, exhibit, or other thing filed in a court case by the parties or their lawyers.You should not put in a document filed with the court sensitive personal information, unless the information is required by law or ordered by the court. If the information is required by law or ordered by the court you should file this information on a sensitive data sheet.

• Sensitive data is defined in the Rules as financial account numbers, full dates of birth of any person and social security numbers. Sensitive data also includes the names of minor children unless state law requires the full names be part of the public record.

It is your responsibility to make sure that any document you file follows the law when sensitive personal information is involved. The Court or Clerk of Court will not review documents submitted for filing to see if it has information that should not be there, or information which should be protected from public access.

•If you want to keep other types of information confidential that are not protected by law, you may file a Motion to Seal. Your motion may ask for the entire case, a particular document, or a portion of a document to be kept confidential.

• However, the basis for a judge limiting public access to court records is quite limited. The Court will carefully weigh your right to privacy against the public's right to know. The Court will choose the least restrictive alternative to keeping information confidential.