RULES OF CIVIL PROCEDURE

1. RULES OF CIVIL PROCEDURE STATE AND FEDERAL THEN AND NOW January 2008

2. Handout Materials • CD format: too big to print and bring • Will post to website as well: 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

3. 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

4. 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

5. 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

6. 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

7. Major Innovations of F.R.Civ.P. • Shortened pleading phase: • Notice pleading • 2-stage pleading the norm • Added discovery full disclosure of information to both sides key to goal of justice through trial on the merits • Increased judicial oversight: e.g., pretrial conferences

8. 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.”

9. State Adoption of F.R.Civ.P. • “Wait and watch” • “In the late ‘80s, two authors did a survey of how many states have “adopted” the FRCP or used them as a model and found that 22 states plus D.C. had done so. That number is quoted even in very current sources. However, a 2001 article points out that only 8 of those 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.” • 1939-2007 adoption of rules based largely on federal model: States, including Montana Tribes, including CS&K, Crow, Blackfeet, Rocky Boy’s, Northern Cheyenne, Fort Belknap, Fort Peck

10. 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: • CS&K, • Crow. • Blackfeet, Rocky Boy’s, Northern Cheyenne, Fort Belknap, Fort Peck?

11. 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”

12. 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…”

13. 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

14. 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

15. Time for Service of Process • Montana: 3 years: M.R.Civ.P. 4E • Replaces former 41e • Federal: 120 days: F.R.Civ.P. 4m

16. 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

17. 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

18. 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

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

20. 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

21. 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

22. 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

23. 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

24. 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.

25. 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;

26. 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 …

27. 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

28. 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.

29. 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

30. 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

31. 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.”

32. New 8e2, restyled • “If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.”

33. 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”

34. 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ﾕs own information by filing it without redaction and not under seal.

35. 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

36. New U.S.District Court Local Rules • Extensive Revisions effective NOW: January 7, 2008 • Available at website: • http://www.mtd.uscourts.gov/rules.htm

37. 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.

38. 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