Posted: April 25, 2024
Utah Rules of Business and Chancery Court Procedure – Comment Period Closes June 9, 2024
NEW Rules of Business and Chancery Court Procedure – These rules were drafted using the Utah Rules of Civil Procedure as their base line. Thus, the Committee determined that the Rules of Civil Procedure were adequate for the Business and Chancery Court, these rules simply incorporate them by reference rather than repeat the identical language. For example, although these rules include significant modifications to Utah Rule of Civil Procedure 26, necessitating a distinct Rule 26 for the Business and Chancery Court, the Committee concluded that Utah Rule of Civil Procedure 37, including its mechanisms for enforcing the parties’ discovery obligations under Rule 26, could be adopted into these rules without modification and is therefore incorporated by reference. The Rules of Civil Procedure that do not apply in Business and Chancery Court are explicitly excluded by reference in Appendix A.
URBCP001.NEW — General provisions.
URBCP008.NEW — General rules of pleadings.
URBCP010.NEW — Form of pleadings and other papers.
URBCP013.NEW — Counterclaim and crossclaim.
URBCP014.NEW— Third-party practice.
URBCP016.NEW— Pretrial conferences.
URBCP018.NEW— Joinder of claims and remedies.
URBCP019.NEW— Joinder of persons needed for just adjudication.
URBCP020.NEW— Permissive joinder of parties.
URBCP022.NEW — Interpleader.
URBCP024.NEW— Intervention.
URBCP026.NEW — General provisions governing disclosure and discovery.
URBCP038.NEW— Jury trial of right.
URBCP042.NEW — Consolidation and separate trials.
URBCP063.NEW — Disability or disqualification of a judge.
URBCP065A.NEW— Injunctions.
URBCP065B.NEW — Extraordinary relief.
URBCP077.NEW — Business and chancery court; clerks.
URBCP085.NEW— Title.
URBCP086.NEW — Licensed paralegal practitioners.
Appendix A Rules of Civil Procedure excluded from Rules of Business and Chancery Court Procedure
Congratulations to the committee for the creation of these rules.
This comment relates to Proposed Rule 1.
For subsection (b), I would suggest Utah R. Bus. & Ch. P. I recognize that the abbreviation is considerably longer than what the drafters have proposed. However, it is more consistent with the Bluebook (See, for example, BB R. 12.9.3, T.1 (no abbreviation of “Utah”), T.6 (abbreviation of “Business” and the use of the ampersand), T.7 (abbreviation of “Chancery”)).
It is also more consistent with other Utah rules that suggest an abbreviation, such as the Utah Rules of Appellate Procedure, and the Utah Rules of Juvenile procedure.
Finally, it would also avoid confusion, especially for people who are not aware of, or do not regularly practice in the Business and Chancery Court. The shorter abbreviation may be confused with the rules of civil or criminal procedure, especially if the writer has any typographical errors deviating from the abbreviation.
For subsection (f), I would suggest the following language, to replace the second sentence of subsection (f): “A party must provide a copy of the decision to the court and all parties if the decision is not available in a publicly accessible electronic database, or if requested by the court or an opposing party.”
Most cases in Business and Chancery Court will likely be litigated by sophisticated parties represented by counsel who will have access to reported and unreported decisions through commercial electronic databases. Requiring the parties to attach all decisions of the Business and Chancery court will waste time and resources when the decisions can be quickly and easily accessed by the court and all parties.
This proposed change strikes a balance in the rare circumstances where a decision may not be readily available. It will also be consistent with the practice in federal court, as reflected in DUCivR 7-2(c).
(These comments are mine only and do not necessarily represent the opinion of my employer or any other organization with which I am associated.)
I appreciate Mr. Kaiser’s concerns relating to the proposed requirement to provide copies of the decisions cited for this Court. I endorse his recommendation that copies of such decisions only be provided when not readily available in a publicly accessible electronic database or if requested by the court or an opposing party. If the court or opposing party requests a copy of a decision, the rules should provide an acknowledgement that an extension of time may be necessary for responsive briefs, an opinion from the Court, or the dates stipulated in the pretrial conferences.
Regarding Mr. Kaiser’s suggestion to change the manner in which the rules for the Business and Chancery Court are cited, I note that the Delaware Court of Chancery has developed its own local usage for citations of the Court’s rules, dropping reference to the state and simply citing to Ct. Ch. R. ___. Given that the length of the Utah Business and Chancery Court name would suggest a need for economy and that the proposed acronymic uniqueness eliminates confusion, I see no compelling reason to change Utah Rule of Business and Chancery Procedure 1(b).
Thank you to the Committee for their diligence and efforts in creating these rules.
Rule 38(b)(7) indicates that the Business and Chancery Court will order the transfer of all issues to be tried by jury to the district court as set forth in Utah Code § 78A-5a-104. This section of the code discusses the timing of the transfer and pre-transfer adjudication. The code does not discuss venue questions that may arise. Is the Business and Chancery Court responsible for determining the venue, i.e. district court, to which the case must be transferred? Perhaps it would be best if there was a requirement within Rule 38 to require not only a demand for trial by jury, but also within that demand a designation of the appropriate venue for the transfer. If that requirement is imposed, the parties can, if necessary, contest the venue before the Business and Chancery Court alongside the right to trial by jury.
Thank you.
This comment relates to Rule 8 and how it relates to the preliminary statutory hurdle under Utah Code § 78A-5a-103(1)(a); that jurisdiction lies within the Business and Chancery Court for an action that seeks either monetary damages of at least $300,000 or solely equitable relief. To facilitate the expeditious adjudication envisioned for the Business and Chancery Court, Rule 8 could be modified to require the complaining party to specifically state how it meets the preliminary jurisdictional hurdle for the Business and Chancery Court.
Similar to URCP Rule 8 requiring a pleading to at least state “damages are such as to qualify for a specified tier,” the Committee might consider requiring a claim to state that either the damages are in excess of $300,000 or indicate the specific form of equitable relief being sought. This would assist the Court in quickly determining whether jurisdiction is appropriate and, if not, potentially dismissing the case sua sponte without prejudice or transferring the claim to the district court.
It might be more efficient for the Business and Chancery Court to transfer such cases to the district court rather than dismissing them, but the venue choice may not be clear. The rules could also contemplate this situation. In instances where the Business and Chancery Court finds jurisdiction does not lie within that Court, that upon such a finding the claiming party shall have an opportunity to indicate the appropriate venue for transfer.
It appears that part of the intent of these new rules is to push cases along quicker. The proposed Rule 16 requires, for example, an initial pretrial conference and an initial planning conference. And then the proposed Rule 26(c)(4) would require court approval and a finding of good cause (not just a stipulation of the parties) in order to obtain extraordinary discovery beyond the “presumptive” limits. All this seems designed to force the parties to set a discovery plan and stick to the presumptive schedule, so that cases move quickly without excessive extensions. So I do not understand the purpose of the proposed changes to the expert disclosure rules, which would take us back to having both reports and depositions. The proposed rule 26(a)(3) requires every expert to produce a report at the time of disclosure, and then allows the opposing party to also depose that expert, and it removes the language about the expert being bound by the contents of the report. (Compare URCP 26(a)(4)(B) “A report must be signed by the expert and must contain a complete statement of all opinions the expert will offer at trial and the basis and reasons for them. Such an expert may not testify in a party’s case-in-chief concerning any matter not fairly disclosed in the report.” This language is stricken from the proposed Rule 26(a)(3)). The practical effect of removing that language is that parties will now feel the need to depose every expert witness in order to pin down their opinions. Thus, we would be back to the days of needing both an expert report and a deposition in every case. Plus, the depositions under the proposed rule, could go up to 6 hours instead of the current 4 hours.
My sense is that this change, if implemented, would slow cases down and drive up expert costs. The existing Rule 26(a)(4) election of either a report or a deposition is better structured to save time and costs, especially when a party can rest assured that the expert will be precluded from offering testimony at trial that was not fairly disclosed in the report. I encourage the committee to reject the proposed changes to the expert discovery rules.