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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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Cynthia Ford, Professor
and Briana Schwandt, Student
University of Montana School of Law
Read the rule, then
How to comply: serve summons and complaint together
. . . 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).
. . . 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
(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.
(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
(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.
Do file deposition notices
(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.
(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 Rule 5d3 divides facsimile (allowed then and now) from other electronic filing (not allowed yet)
(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.
(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.
(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 . . . .
“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.”
(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.
(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: . . . .
Per Rule 6b2 for
. . . 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
(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.
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.
(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.
. . .
“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
(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.
(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;
. . .
(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.
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
“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)…”
(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.
(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.
(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.
. . . To proposed Rule 26(b)(5), which covers draft reports by experts who are disclosed under the proposed Rule 26(b)(4).
(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.
. . . To proposed Rule 26(b)(7), which provides a process to follow in the event of inadvertent disclosure of privileged material.
(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.
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”
(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.
(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.
(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.