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How the Proposed Changes to the Montana Rules of Civil Procedure Should Change You. Cynthia Ford, Professor and Briana Schwandt, Student University of Montana School of Law. M.R.Civ.P. Research Route. Read the rule, then Montana Commission/Committee Comment Montana Supreme Court cases

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how the proposed changes to the montana rules of civil procedure should change you

How the Proposed Changes to the Montana Rules of Civil Procedure Should Change You

Cynthia Ford, Professor

and Briana Schwandt, Student

University of Montana School of Law

m r civ p research route
M.R.Civ.P. Research Route

Read the rule, then

  • Montana Commission/Committee Comment
  • Montana Supreme Court cases
  • Compare to Federal Rule
  • Only if they are similar:
  • Federal Commission Comments
  • Federal Treatise
  • Federal Cases
outline of practices to change
Outline of Practices to Change
  • Serve Summons and Complaint together: 4d1
  • Disabilityof Judges
    • Time to serve process after filing original complaintstill 3 years: Rule 4t
    • Time to substitute real for fictitious defendantstill 3 years: Rule 4t
    • Number of days to respond to service of process by mail: now 21, not 20: Rule 4d3C
outline of changes cont d
Outline of changes, cont’d
  • A.G. gets 60, not 20 to intervene in cases challenging the constitutionality of a state statute: Rule 5.1(b)
  • Privacy requirements now in M.R.Civ.P. 5.2, consistent with the Supreme Court’s Rules for Privacy and Public Access to Court Records and similar to F.R.Civ.P. 5.2
outline of changes cont d1
Outline of Changes cont’d
  • Corporate parties required to file disclosure identifying any corporation owning 10% or more of its stock, or stating there is none: Rule 7.1
  • Rule 11 significantly changed to conform to federal version
    • Danger here: no more “empty” Rule 12b6 motions to dismiss to gain more time?!
  • Rule 12b response deadlines changed from 20 to 21 days (for State, 42); pleadings after court rules on Rule 12 motion due within 14 days
outline of changes cont d2
Outline of Changes, cont’d
  • Defense of improper venue now treated like other Rule 12b defenses: may raise by motion or in answer, but will be waived if not made in the earlier. No longer required to make a motion to assert this defense.
  • New procedure for claiming privilege or work-product protection in discovery responses: Rule 26b7A
  • New procedure for mistakenly produced privileged or protected material: Rule 26B7B
outline of changes cont d3
Outline of Changes, cont’d
  • New clarification of interstate depositions and discovery, Rule 28c, drawn from the Uniform Interstate Depositions and Discovery Act
proposed rule 4 d 1
Proposed Rule 4(d)(1)
  • In General. The summons and complaint must be served together. The plaintiff must furnish the necessary copies to the person who makes service.

How to comply: serve summons and complaint together 

present rule 4d 1 b i
Present Rule 4D(1)(b)(i)

. . . If no acknowledgment of service under this subdivision of this rule is received by the sender within20 days after the date of mailing the summons and complaint, service of such summons and complaint shall be made by one of the persons mentioned in Rule 4D(1)(a) in the manner prescribed by Rule 4D(2) and Rule 4D(3).

proposed rule 4 d 3 c
Proposed Rule 4(d)(3)(C)

. . . If no acknowledgment of service by mail is received by the sender within 21 days after the date of mailing, service of the summons and complaint must be made in person.

How to comply: change your acknowledgment of service form to reflect that defendant has 21 days; change your calendar system to 21 days before you can arrange personal service

Use Form 18-A of the Official Forms

present rule 4e
Present Rule 4E

(1) A plaintiff shall have 3 years after filing a complaint to have a summons issued and accomplish service.

(2) A plaintiff who names a fictitious defendant in the complaint, pursuant to 25-5-103, MCA, may amend the complaint to substitute a real defendant for the fictitious defendant within 3 years of filing the original complaint in the action. The 3 year time period set forth in subparagraph (1) of this rule for issuance and service begins to run, as to the newly identified defendant, from the date of the filing of the original complaint.

proposed rule 4 t
Proposed Rule 4(t)

(1) a plaintiff must accomplish service within two yearsafter filing a complaint. Absent an appearance by defendant(s), the court, upon motion or its own initiative, must dismiss an action without prejudice if the plaintiff fails to do so. NOTE: MSC APPARENTLY REJECTED, STILL 3

(2) a plaintiff who names a fictitious defendant in the complaint pursuant to 25-5-103, MCA, may, within two years of filing the original complaint, amend the complaint to substitute a real defendant for the fictitious defendant. The two year time period set forth in Rule (t)(1) begins to run as to the newly identified defendant from the date of the filing of the original complaint. DITTO: STILL 3

comments about 4t
Comments about 4t
  • Still different from federal version, F.R.Civ.P. 4m, which provides that a complaint will be dismissed if not served within 120 days. Federal dismissal is without prejudice, may be made by motion or suasponte. Plaintiff may get extension “for good cause shown.”
  • Montana dismissal also without prejudice, but DANGER if sol runs in meantime
new 5b2e f
New 5b2E/F
  • “A paper is served under this rule by:
  • …(E) sending it by electronic means if the person consented in writing—in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served; or
  • (F) delivering it by any other means that the person consented to in writing—in which event service is complete when the person making service delivers it to the party of agency designated to make delivery.”
committee note
Committee Note
  • “Rule 5b2E has been added to conform to the Federal Rules…in recognition of the practice of service by admission.”
how to use rule 5b2e f to accomplish electronic service
How to use Rule 5b2E,F to accomplish electronic service
  • Must obtain consent in writing from target
  • Writing means hard copy
  • Draft, file stipulation that service may be by electronic means, designate the email address
  • Change certificate of service to show that service was made “pursuant to prior consent in writing, filed with this court, electronically by email to the following address: …..”
proposed rule 5 d 1
Proposed Rule 5(d)(1)

(d) Filing.

(1) Required Filings; Certificate of Service. Any paper after the complaint that is required to be served – together with a certificate of service – must be filed within a reasonable time after service. But the following discovery requests and responses must not be filed until they are used in the proceeding, ordered by the court in the Rule 16 conference, or the court orders filing: depositions, interrogatories, requests for documents or tangible things or to permit entry onto land, requests for admission, expert disclosure reports, and interrogatory answers.

effect of 5d1
Effect of 5d1:
  • Don’t routinely file
    • Depositions
    • Interrogatories or answers
    • Requests for production or responses
    • Requests for admissions or responses
    • Expert reports

Do file deposition notices

present rule 5 e
Present Rule 5(e)

(e) Filing With the Court Defined. The filing of papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. Papers may be filed by facsimile or other electronic means, provided the original document must be filed with the clerk within five business days of the receipt of the facsimile copy or the filing will be treated as void.

proposed rule 5 d 3 a
Proposed Rule 5(d)(3)(A)

(3) Electronic Filing, Signing, or Verification.

(A) A court may, by local rule, allow papers to be filed, signed or verified by electronic means (other than facsimile) that are consistent with any technical standards established by the court or local rule. A paper filed by electronic means in compliance with a local rule is a written paper for purposes of these rules.

proposed 5 d 3 b
Proposed 5(d)(3)(B)
  • “Papers may be filed by facsimile provided the original document is filed with the clerk within 5 business days of the receipt of the facsimile copy or the filing will be treated as void”

Proposed Rule 5d3 divides facsimile (allowed then and now) from other electronic filing (not allowed yet)

committee note re electronic filing
Committee Note re: Electronic Filing
  • “Rule 5d3A, which allows for electronic filing other than by facsimile, is purely anticipatory. It follows the Federal Rules, but it is the Committee’s intent that this Rule not become operative until further order of the Montana Supreme Court allowing electronic filing (other than by facsimile) either on a state-wide district court basis or in selected districts as experiments.”
present rule 24 d
Present Rule 24(d)

(d) Cases involving constitutional questions where the state is not a party. When the constitutionality of any act of the Montana legislature is drawn in question in any action, suit or proceeding to which neither the state nor any agency or any officer or employee thereof, as such officer or employee, is a party, the party raising the constitutionality of the act shall notify the Montana attorney general and the court of the constitutional issue…. The attorney general may within 20 days thereafter intervene as provided in Rule 24(c) on behalf of the state.

proposed rule 5 1 constitutional challenge to a statute notice and intervention
Proposed Rule 5.1 Constitutional Challenge to a Statute - Notice and Intervention.

(a) Notice by a Party. A party that files a pleading, written motion, or other paper drawing into question the constitutionality of a state statute must promptly:

(1) file a notice of constitutional question stating the question and identifying the paper that raises it, and to?? serve the notice and paper on the state Attorney General either by certified or registered mail or by sending it to an electronic address designated by the attorney general for this purpose.

(b) Intervention; Final Decision on the Merits. Unless the court sets a later time, the attorney general may intervene within 60 days after the notice is filed or after the court certifies the challenge, whichever is earlier. Before the time to intervene expires, the court may reject the constitutional challenge, but may not enter a final judgment holding the state unconstitutional.

(c) No Forfeiture. A party's failure to file and serve the notice, or the court's failure to certify, does not forfeit a constitutional claim or defense that is otherwise timely asserted.

effect of new 5 1
Effect of new 5.1
  • Changes time for A.G. to intervene from 20 to 60 days, more realistic
  • ADDS new subsection, (c): “Failure to file and serve the notice…does not forfeit a constitutional claim or defense that is otherwise timely asserted.” Same as F.R.Civ.P.
  • No corollary to F.R.Civ.P. 5.1“(b) Certification by the Court.The court must, under 28 U.S.C. § 2403, certify to the appropriate attorney general that a statute has been questioned.”
proposed rule 5 2 privacy protection for filings made with the court
Proposed Rule 5.2Privacy Protection for Filings Made with the Court

(a) Redacted Filings.

(1) Unless the court orders or the law requires otherwise, in any 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 must include only:

(A) the last four digits of the social- security number and taxpayer-identification number;

(B) the year of the individual's birth;

(C) the minor's initials; and

(D) the last four digits of the financial account number . . . .

summary of privacy
Summary of Privacy
  • Privacy requirements now in M.R.Civ.P. 5.2, consistent with the Supreme Court’s Rules for Privacy and Public Access to Court Records
  • and similar to F.R.Civ.P. 5.2
  • See also M.R.App.P. 10(7), 13(2)
rule 6 deadline computation
  • Big changes here: read new version over and over
  • Revise your calendaring system!!
  • If need extension, make motion before the deadline
  • If move for extension after deadline, must show “excusable neglect” AARGH
most 10 day deadlines expanded to 14
Most 10 day deadlines expanded to 14
  • Committee Note:

“Most of the 10-day periods were adjusted to meet the change in computation method by setting 14 days as the new period. A 14-day period corresponds to the most frequent result of a 10-day period under the former computation method - two Saturdays and two Sundays were excluded, giving 14 days in all. A 14-day period has an additional advantage. The final day falls on the same day of the week as the event that triggered the period - the 14th day after a Monday, for example, is a Monday. This advantage of using week-long periods led to adopting 7-day periods to replace some of the periods set at less than 10 days, and 21-day periods to replace 20-day periods. Thirty day and longer periods, however, were generally retained without change.”

calculating the deadline 6a
Calculating the deadline: 6a
  • Applies whenever a deadline set in number of days or hours, but date not specified
  • If court sets date (brief due on Feb. 7), court’s date controls and Rule 6a does not apply
  • 6a does not count the day which starts the event, but does count every day in between, including weekends and holidays. True whether more or less than 11 days
  • Brief due in 15 days: don’t count Feb. 4, but do count last day: Get brief in by Feb. 19, but last day is weekend, so can file on Monday the 21st, but it is a holiday, so ok Tues 2/22
  • Also true if court says brief due in 5 days: don’t count Feb. 4, but do count last: get in by Feb. 9
  • Most deadlines in Rules are in multiples of 7 days
motion deadlines rule 6c
Motion deadlines: Rule 6c
  • 14 days before the hearing, must serve written motion and notice of hearing AND must serve supporting affidavits, if any, WITH the motion
  • 7 days before the hearing: opposing affidavit must be served
present rule 6
Present Rule 6

(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the district court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation. A half holiday shall be considered as other days and not as a holiday.

proposed rule 6
Proposed Rule 6

(a) Computing Time. The following rules apply in computing any time period specified in these rules, or court order, or in any statute that does not specify a method of computing time.

(1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time:

(A) exclude the day of the event that triggers the period;

(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and

(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday

(2) Period Stated in Hours.When the period is stated in hours: . . . .

when no extensions allowed
When No Extensions allowed

Per Rule 6b2 for

  • 50b and d (post-trial motions for judgment as a matter of law/new trial)
  • 52b (motion to amend findings of fact)
  • 59b, d, e (motions for new trial, to alter/amend judgment)
  • 60 b (motion for relief from final judgment)
no current rule similar
No current Rule Similar . . .

. . . To proposed Rule 7.1, which is regarding disclosure statements by corporations

Committee Note says: “Rule 7.1 wholly adopts the relevant language of the F.R.Civ.P [7.1

proposed rule 7 1
Proposed Rule 7.1

(a) Who Must File; Contents. A nongovernmental corporate party must file 2 copies of a disclosure statement that:

(1) identifies any parent corporation and any publicly held corporation owning 10% or more of its stock; or

(2) states that there is no such corporation.

(b) Time to File; Supplemental Filing. A party must:

(1) file the disclosure statement with its first appearance, pleading, petition, motion, response, or other request addressed to the court; and

(2) promptly file a supplemental statement if any required information changes.

mrcivp v frcivp 11
MRCivPv. FRCivP 11
  • Montana and federal rules same until


  • Big federal amendment to insert “teeth” in 1983
  • Montana followed suit
  • Several federal amendments 1993-2007
  • Montana still has 1993 version, proposed amendment now follows current F.R.Civ.P.
west headnote of day 2 2 11
West Headnote of Day 2/2/11
  • 170A Federal Civil Procedure
    • 170AXX(C) Persons Liable for or Entitled to Sanctions
  • In General. Rule 11's admonition that every lawyer do necessary work to find law before filing brief applies even to lawyers who have two varsity letters in a collision sport and who were presidents of their fraternities. 
Chambers v. Am. Trans Air, Inc., 17 F.3d 998 (7th Cir. 1994)

present rule 11
Present Rule 11

Every pleading, motion, or other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the party's pleading, motion, or other paper and state the party's address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.

proposed rule 11
Proposed Rule 11
  • Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name -- or by a party personally if the party is unrepresented. The paper must state the signer's address and telephone number, if any. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention.

(b)(2) Representations to the Court…the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous[was good faith] argument

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence, or if specifically so identified, are reasonably based on belief or lack of information.

. . .

effect of signing per new rule 11
Effect of Signing per new Rule 11
    • Must include attorney’s phone number on all papers
    • Must specifically identify factual contentions and denials which do NOT have evidentiary support; by including, signer certifies that the contentions are “likely to have support after a reasonable opportunity for further investigation or discovery” and that the identified denials are reasonably based on belief or lack of information
  • Legal contentions are warranted by existing law or “nonfrivolous” [v. “good faith” argument]
enormous rule 11 change unstated
  • Montana practice has traditionally allowed a defendant to file an unsupported Rule 12b6 motion to gain more time to answer than the 20 days technically allowed by Rule 12a
  • Montana Commission Comment to current Rule 11 specifically exempted Rule 12b6 motions
  • Proposed Rule/Comments make no exception!
advisory committee s note to october 9 1984 amendment
  • ... It has been the practice for many years in both Montana Federal and State Courts for the pleader to first file a responsive motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b) for the purposes of obtaining additional time within which to prepare an answer and to inform the court and parties that an appearance is being made. The courts have recognized this practice and routinely overrule the motions unless briefs are filed in support or the motions are set for oral argument. It is not the intent of the Advisory Commission in adopting the foregoing amendment to do away with this practice.
proposed rule 11 notice safe harbor
Proposed Rule 11: Notice/Safe Harbor
  • (c)(2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 1l(b).The motion must be served under Rule 5, but must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion.
sanctions changed less bite
Sanctions Changed: Less Bite?
  • Now permissive, were mandatory

“If…the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction…

If imposed, sanctions not necessarily monetary: may include nonmonetary directives; a penalty paid to court; OR to opponent for part or all of the fees and expenses caused by the violation

how to comply with new rule 11 substantively
How to Comply with New Rule 11 Substantively
  • Do an inquiry which is reasonable under the circumstances before filing any paper
  • Identify any factual contentions or denials which are NOT supported by the inquiry
  • Do NOT file an unsupported Rule 12b6 motion to dismiss simply to gain more time to answer: your signature certifies, inter alia, that the paper is “not being presented for any improper purpose, such as …to cause unnecessary delay…”
how to comply with rule 11 procedurally
How to comply with Rule 11 procedurally
  • If move for sanctions, must
    • Make separate motion, describing the specific violation
    • Serve motion on opponent
    • Wait 21 days before file motion; target is allowed to withdraw or correct in interim
    • Prepare detailed proposed order describing the sanctioned conduct and basis for the sanction (11c6)
rule 12 a timing changed
Rule 12(a): timing changed
  • Old rule: 20 days to file answer to complaint or cross-claim, reply to counterclaim (40 for state)
  • New rule: 21 days for answer to complaint, counterclaim or crossclaim (42 for state)
  • Old rule: If defendant made Rule 12 motion to dismiss, denied, answer due in 20 days
  • New rule: If Rule 12 motion to dismiss is made and denied, answer must be filed within 14 days.
proposed rule 12 a
Proposed Rule 12(a)

(a) Time to Serve a Responsive Pleading.

(1) In General. Unless another time is specified by this rule or a statute, the time for serving a responsive pleading is as follows:

(A) a defendant must serve an answer within 21 days after being served with the summons and complaint, unless the court orders otherwise under Rule 4(a)(2)(c).

(B) a party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.

(C) a party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.

(2) State of Montana and Its Agencies, Officers, or Employees Sued in an Official Capacity. The State of Montana, a state agency, or a state officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 42 days after service on the attorney general.

(3)State Officers or Employees Sued in an Individual Capacity. A state officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the state's behalf must serve an answer to a complaint, counterclaim, or crossclaim within 42 days after service on the officer or employee or service on the attorney general, whichever is later.

proposed rule 12 b 3
Proposed Rule 12(b)(3)

(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction;

(2) lack of personal jurisdiction;

(3) improper venue;

(4) insufficient process;

(5) insufficient service of process;

. . .

present rule 12 b i iii
Present Rule 12(b)(i)-(iii)

 (i) The cases in which place of trial may be changed are specified in section 25-2-201, Montana Code Annotated.

 (ii) If the county designated in the complaint is not the proper county for trial of the action, the defendant must at the time of defendant's first appearance request by motion that the trial be had in the proper county. Every defense in law or fact, to a claim for relief in any pleading which defendant desires to present by way of motion as hereinabove provided must be joined with, or inserted in, the motion requesting a change in the place of trial. If the court in which the action is commenced grants the request for change of venue, that court shall not consider nor pass upon other defenses in law, or fact, presented by the motion, but such shall be considered and decided by the court sitting in the proper county after the transfer has been completed. No request for change of venue is waived by being joined in a motion with other defenses or objections in law or fact.

(iii) Any request for change in place of trial for grounds 2 and 3 of section 25-2-201, Montana Code Annotated, must be presented by motion within 20 days after the answer to the complaint, or to the cross-claim where a cross-claim is filed, or the reply to any answer, in those cases in which a reply is authorized, has been filed; except that whenever at some time more than 20 days after the last pleading has been filed an event occurs which thereafter affords good cause to believe that an impartial trial cannot be had under ground 2 of said section 25-2-201, and competent proof is submitted to the court that such cause of impartiality did not exist within the 20-day period after the last pleading was filed, then the court may entertain a motion to change the place of trial under ground 2 of section 25-2-201 within 20 days after that later event occurs.

changes how to plead improper venue
Changes How to Plead Improper Venue
  • Old rule: venue not included in 12b per se, gap where F.R.Civ.P. had 12b3
    • Venue could ONLY be raised by motion
    • Had to be raised at time of first appearance

New rule: improper (as of time of filing complaint) venue a normal Rule 12b defense, may be made by motion or, if no Rule 12b motion, in answer

rule 23 class actions big changes
Rule 23, Class Actions: Big Changes


“The language of Rule 23 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes have also been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are substantive and are intended to follow the Federal Class Action Rule. The most significant changes are in Rules 24( f), (g) and (h)…”

rule 26 scope of discovery
Rule 26: Scope of Discovery
  • History: big federal changes several years ago
  • Montana has so far not followed many of those, eg Montana has not yet adopted the federal system’s mandatory pre-discovery disclosure or the requirement of a detailed expert report
  • 2010 Committee recommendation:
    • Still no mandatory disclosure
    • Still no detailed expert report
    • More protection of expert’s drafts and communication
recent supreme court action
Recent Supreme Court action
  • No formal order yet
  • Meeting held 11/30/2010
  • Divided court, rejected 26b5, proposed privilege for communications between counsel and expert and for drafts of expert’s reports (would have conformed to F.R.Civ.P. 26b4 and ABA proposal. “Wait and see how federal revision works”)
  • Thus, expect no change, no specific protection for experts (can still argue work-product….)
  • Advice: don’t allow experts to communicate or keep drafts in writing
proposed rule 26 b 2
Proposed Rule 26(b)(2)

(2) Limitations on Frequency and Extent.


(B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

proposed rule 26 b 3
Proposed Rule 26(b)(3)

(3) Trial Preparation: Materials.

(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)( 4), those materials may be discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1); and

(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.

(C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either:

(i) a written statement that the person has signed or approved; or

(ii) a contemporaneous stenographic, mechanical, electrical, or other recording - or a transcription of it - that recites substantially verbatim the person's oral statement.

proposed rule 26 b 4 a ii
Proposed Rule 26(b)(4)(A)(ii)

(ii) A party may depose any person who has been identified as an expert whose opinions may be presented at trial. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this rule, concerning fees and expenses as the court may deem appropriate.

no rule similar
No Rule Similar . . .

. . . To proposed Rule 26(b)(5), which covers draft reports by experts who are disclosed under the proposed Rule 26(b)(4).

proposed rule 26 b 5 apparently rejected by supreme court
Proposed Rule 26(b)(5), apparently rejected by Supreme Court

(5) Limitations on Discovery from Experts.

(A) In General. There shall be a privilege for draft reports and communications between attorneys and experts retained and disclosed under Rule 26(b)( 4) as follows:

(i) an expert's draft reports shall not be required to be produced to an opposing party;

(ii) communications, including notes, reflecting communications between an expert and the attorney who has retained the expert shall not be discoverable except upon a showing of exceptional circumstances.

(B) Exceptions. Nothing in the preceding paragraph shall preclude opposing counsel from obtaining any facts or data the expert is relying upon in forming his or her opinion, including that coming from counsel, or from otherwise inquiring fully of an expert into what facts or data the expert considered, whether the expert considered alternative approaches, or into the validity of the expert's opinions.

no rule similar1
No Rule Similar . . .

. . . To proposed Rule 26(b)(7), which provides a process to follow in the event of inadvertent disclosure of privileged material.

proposed rule 26 b 7
Proposed Rule 26(b)(7)

(7) Claiming Privilege or Protecting Trial-Preparation Materials.

(A)Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:

(i) expressly make the claim; and

(ii) describe the nature of the documents, communications, or things not produced or disclosed and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.

how to claim privilege protection
How to claim privilege/protection

Object: “privileged” or “work product”

AND describe the allegedly protected material

without breaching the protection

E.g., Defendant objects to production of the following material on the basis of attorney-client privilege:

Letter dated 2/4/2011 from Attorney Cynthia Ford to Client Joe Smith, subject line: “About our conference yesterday” and marked as “Attorney-Client privileged material”

new procedure if mistakenly produce privileged or protected material
New Procedure if mistakenly produce privileged or protected material
  • (B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.
action to take if mistakenly produce
  • DON’T
  • If do, must immediately act
  • Call/write opposing lawyer and assert privilege or protection
  • Demand (request?) return
  • Move court for an order requiring return if opponent refuses
action to take if get obviously mistakenly produced material
  • YOU give it back without reading/using
  • If contacted by opponent:
    • Cannot use or disclose information until claim is resolved
    • Must return, or at least sequester or destroy originals and any copies
    • Must try to recover the information if you already passed it on
    • May move under seal for court determination
proposed rule 26 c
Proposed Rule 26(c)

(c) Protective Orders.

(1) In General.A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(A) forbidding the discovery;

(B) specifying terms, including time and place, for the discovery;

(C) prescribing a discovery method other than the one selected by the party seeking discovery;

(D) forbidding inquiry into certain matters, or limiting the scope of discovery to certain matters;

(E) designating the persons who may be present while the discovery is conducted;

(F) requiring that a deposition be sealed and opened only on court order;

(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and

(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.

(2) Ordering Discovery. If a motion for protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.

(3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses.

proposed rule 26 e 1 b 2
Proposed Rule 26(e)(1)(B)(2)

(e) Supplementing Responses.

(1) In General. A party who has responded to an interrogatory, request for production, or request for admission must supplement or correct its response:

(A) in a timely manner if the party learns that in some material respect the response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or

(B) as ordered by the court.

(2) Expert Witness. For an expert whose opinions must be disclosed under Rule 26(b)(4), the party's duty to supplement extends both to information included in the disclosure and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time of the preparation and submission of the pretrial order to the court.

now clearly can depose experts
Now clearly can depose experts
  • Current M.R.Civ.P. 26b4 allows interrogatories about experts, but seems to require motion/order for further discovery such as depositions
  • Montana lawyers have always taken expert depositions anyway, without court order
  • Proposed Rule 26b4 adds Aii, specifically allows depositions, retains motion/order procedure for “further discovery” to conform to actual practice (and federal procedure)
Proposed Rule 28(c)From the 2007 Uniform Interstate Depositions and Discovery Act adopted by the MTSC

(c) Interstate Depositions and Discovery.

(1) Definitions. For purposes of this rule:

(A) "Foreign jurisdiction" means a state other than Montana;

(B) "Foreign subpoena" means a subpoena issued under authority of a court of record of a foreign jurisdiction;

(C) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency or instrumentality, or any other legal or commercial entity; and

(D) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

(E) "Subpoena" means a document, however denominated, issued under authority of a court of record requiring a person to:

(i) attend and give testimony at a deposition;

(ii) produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody or control of the person; or

(iii) permit inspection of premises under the control of the person.

(2) Issuance of a Subpoena.

(A) To request issuance of a subpoena under this section, a party must submit a foreign subpoena to a clerk of court in the county in which discovery is sought to be conducted in Montana. A request for issuance of a subpoena under this act does not constitute an appearance in the courts of this state.

(B) When a party submits a foreign subpoena to a clerk of court in this state, the clerk, in accordance with that court's procedure, shall prompt! Y issue a subpoena for service upon the person to which the foreign subpoena is directed.

(C) A subpoena under subsection (B) must:

(i) incorporate the terms used in the foreign subpoena; and

(ii) contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.

ulc comment on uniform rule
ULC Comment on Uniform Rule
  • “The act is simple and efficient: it establishes a simple clerical procedure under which a trial state subpoena can be used to issue a discovery state subpoena.  The act has minimal judicial oversight: it eliminates the need for obtaining a commission, letters rogatory, filing a miscellaneous action, or other preliminary steps before obtaining a subpoena in the discovery state.  The act is cost effective: it eliminates the need to obtain local counsel in the discovery state to obtain an enforceable subpoena.  And the act is fair to deponents: it provides that motions brought to enforce, quash, or modify a subpoena, or for protective orders, shall be brought in the discovery state and will be governed by the discovery state’s laws.”
rule 23c helps out of staters
Rule 23c helps out-of-staters
  • Provides procedure for someone to take the deposition of a Montanan for use in litigation in another state
  • Montana lawyers should be able to use the same simple procedure to take a deposition in another state, but depends on whether that state has also adopted the Uniform Act
  • If not, have to consult the other state’s Rules of Civil Procedure; probably hire local counsel
all she wrote not by a long shot
All She Wrote? Not by a long shot
  • I’ve got almost 80 more slides, but can’t cover everything in one or two hours
  • Can repeat research route:
    • Wait for confirmation that Supreme Court has adopted new rules
    • Get a copy of the new rules and the Committee Notes
    • Check every time you use a rule whether it’s been changed. Have to learn new tricks, whether you’re a pup or an octogenarian