Rules of Civil Procedure

The Utah Court of Appeals, in the recent case of Rahofy v. Steadman, 2010 UT App 350, struck down (or severely limited) the use of informal releases as a method to obtaining out of state records of an opposing party. This method of discovery allows for a quicker, less expensive method of gathering significant amounts of relevant materials. The Rahofy court directed parties to instead initiate ancillary proceedings in other states to obtain records outside of Utah, even though the court “readily acknowledge[d] that to obtain all of the information Defendants seek they may have to undertake a time-consuming and expensive process.”
This holding is at odds with this Committee’s desire to simplify the discovery process. Unfortunately, the situs of relevant records is not determined by the value of the claims being made. A relatively minor $20,000 personal injury claim is just as likely to have relevant records stored in California as a $500,000 contract claim. However, under the proposed scheme, the $20,000 claim only allows for 120 to conduct discovery and an extremely limited number of requests for production of documents – a scheme at odds with the Rahofy holding. The 120 days will easily be consumed by the simple task of obtaining copies of the most basic records.
The committee needs to amend the proposed changes to acknowledge the restrictions imposed by Rahofy.

I’m in favor of some limitations on discovery, but the limitations currently set forth in the proposed Rule 26 “tiers” places too great a hardship on the defendant; particularly in the tier 1 discovery, which allows “0” interrogatories. This means there is no way to ascertain whether a plaintiff had a prior injury, accident or condition, because the defendant cannot ask for the names of providers, etc. Regardless of the value of the claimed injury, the defendant should be able to discover whether it arose from the relevant accident. Should the answers be sought through deposition, the 3 hours allotted could be used quickly where both parties consume the time by including questions. How is this time to be divided?
Similarly, the deadlines for expert discovery require a defendant to retain a medical expert within 7 days of receiving a summary of a treating physicians opinion, and then 28 days to have him review the material and produce a report as a retained expert. It is rarely (if ever) possible to get a physician to agree to such a time line. This will actually force the defendant to retain doctors who are professional experts and will certainly increase the cost due to the tightened timeline.
Finally, going away from the relevance standard to a proportionality standard is too subjective and invites the filing of motions to determine whether the value of a certain discovery request is proportional to the value of the damages requested. Each decision will be confined to the facts of the case and it will be impossible to even define such an esoteric standard.

If the judiciary wants to bring litigation to a just result more quickly, it seems that the first place to start is where the issues are initially framed, i.e., the pleadings — especially answers. That is where defendant stonewalling always begins. The proposed revision to Rule 8 completely removes any requirement that a defendant must deny and defend only in good faith (i.e., that denials must fairly meet the substance of the matter denied). Granted that Rule 11 remains, but it has become expensive to enforce and is often overlooked or ignored — especially by pro se litigants. I suggest that a “good faith” pleading requirment be inserted either at the beginning of Rule 8 (applicable to all parties) or at least as a preamble Rule 8(b) making it clear that any denial or defense must be made or brought in good faith and made or stated so as to make clear the good-faith basis for the denial or defense.
Proposed Rule 16(a)(11), (12) & (13) lack an appropriate initial present participle such as “setting,” “establishing” and “enforcing” to make them clearer and uniform with the prior subparagraphs. 16(a)(11) could also use a comma after the word “conferences” to add clarity.
The preamble to proposed Rule 26(a) should be changed so that instead of recognizing other discovery rules that apply “in a practice area,” it recognizes other discovery rules that apply “to specific types of cases.” A “practic area” is too broad a reference and only applies to attorneys and not to pro se litigants.
Proposed Rule 26 is also too draconian when it comes to discovery for lower tier cases. Parties should be allowed to propound some interrogatories and take some depositions — even in cases where the amount at issue is less than $50k. And, if injunctive or declaritory relief is requested, litigants may need more than what is permitted in tier 2. Again, requiring that the pleadings appropriately narrow the issues will do more to decrease discovery than trying to fit cases into tiers with discovery caps.
Proposed new Rule 26A ignors the current practice of requiring the parties to file Financial Declarations in connection with a Motion for Temporary Orders, which usually comes hot on the heels of, if not concurrently with, the filing of the initial Petition. This rule, as drafted, would give a respondent an excuse to delay filing his Financial Declaration and/or postpone the entry of a Temporary Order because the 28 days after he filed his answer had not yet run.
Proposed Rule 26A also presumes that there is a court-approved Financial Declaration. In my experience, if there is a court-approved form in a particular district, it is rather ad hoc and does not conform to conventional rules for income statements (i.e., statements of income and expenses) or balance sheets (i.e., statements of assets and liabilities). If this rule is going to incorporate such a form by reference, the judiciary should create a good form to be used uniformly in all districts.
Proposed Rule 36, line 6, isn’t clear as to what document(s) it’s referring to.

The changes to Rule 8 appear otiose. If the pleading standard is not changed — and that is what the rejection of Twombly appears to state — then what is the value of requiring that facts and theory be pled? With the rejection of Twombly, the facts and theory need not be even plausible, so there does not appear to be any legitimate purpose in changing the Rule; it can only introduce uncertainty and encourage motion practice.

The proposed rules leave a lot of room to game the system. A few examples:
Rule 8(a)(3) requires a plaintiff seeking unspecified damages to plead that their damages are within a specified tier. However, there does not appear to be anything that limits the plaintiff’s recovery to that tier. What prevents a plaintiff from saying its complaint are “tier 1 damages” but then asking the jury for $500,000 at trial? Frankly, why wouldn’t plaintiffs do this? They save a ton of costs, get an early trial, and most importantly, the defending party is blindsided because it has only had 3 hours of depositions and 5 requests for production.
PJ’s comment addressed the games that can be played with having to choose between an expert report or an expert deposition.
There are other examples, although these seem the most blatant.

The massive revision of civil procedure proposed by the Advisory Committee is remarkable in a number of ways. Start with Rule 1 and the explanation for the plan of revisions. The Introductory Notes assert that discovery processes have ignored Rule 1’s call for “speedy” and “inexpensive” justice. That observation is, the Committee says, supported by empirical evidence, citing a 2008 survey the College of Trial Lawyers. It may be that the Committee is right, but what it offers as justification is not much more than ipse dixit. The 2008 survey is, after all, just an opinion poll. It is not a study of the actual costs for any phase of discovery or litigation. One cannot make any reasonable inferences from the 2008 survey to costs of discovery and, consequently, to whether ‘speedy and inexpensive’ justice has been sacrificed. The Committee’s citation to ABA studies is no better. Those studies too are just opinion polls. None of the studies actually looks at the costs of discovery. There is nothing in the studies which suggests that small dollar value cases in fact involve too much discovery, or that too much money is spent on expert discovery, because they contain no information about how much expert discovery costs. The division of cases proposed in the new Rule 26, therefore, appears to be arbitrary. This is not just a problem in the Advisory Notes. Review of the Committee’s minutes for the last year are equally bereft of any empirical foundation for any of the proposed changes. The Committee could have, but did not, investigate how much is actually spent on various sorts of cases (contracts, personal injury, other torts, etc.) and on cases valued at various levels. It could have made a study of the actual costs of expert discovery under the current rules. It is therefore rather difficult to tell whether the Committee’s pronouncements about discovery are correct.
A second point before turning to the substance of the proposed changes: Many of the revisions seem to contemplate fairly dramatic changes in the conduct and practices of both lawyers and judges, but for reasons that are not explained. Judges, who have to date not strictly enforced disclosure requirements, discovery limits, or deadlines, will do so under the new Rules. Lawyers who currently cannot cooperate for efficient discovery plans and routinely flout disclosure requirements and discovery limits, under the new Rules will do otherwise. (It is clear that the Committee believes that lawyers routinely fail to make proper disclosures, impose unreasonable discovery requests, and adopt tactical stances for the purpose of raising litigation costs – they say as much in the Notes to Rules 1 and 26.) One wonders why there will be such a change in culture.
The centerpiece of the proposed revisions is Rule 26. The presumption at work throughout the changes in Rule 26 (and the related discovery rules) is that discovery is to be discouraged. A party seeking anything beyond what the adverse party wants to disclose will have the burden of proving that the requested discovery is proportional to the burden of production, and that the information is not available from some other source. The idea is that fuller initial disclosures will obviate the need for any but minimal discovery. This seems doubtful. A plaintiff would not normally rely on, and hence disclose, evidence that undermines or disproves its case. How is that information to be collected? A defendant won’t be able to ask for categories of information in an effort to test the plaintiff’s story. Any request, whether a request for documents or an interrogatory, can be met with an objection that it is burdensome or disproportional, and the defendant then will have to prove that the discovery request will result in some material evidence. (How does a party moving to compel show that the discovery request is not burdensome?) The presumption against discovery does look like an invitation to a more active motion practice, and so does not look like it will advance speedy and inexpensive resolution of cases. (In this regard, the Committee might have considered the history of discovery under the Federal Rules – there was a time when the burden was on the requesting party to show the discovery request justified. The Committee might have explained why the Federal Rules abandoned that approach and why those reasons won’t apply here.) Matters on not really any better for a plaintiff who requires discovery to make its case.
The Committee lays great emphasis on the new disclosure requirements obviating need for significant additional discovery. This is surprising because the scope of initial disclosures is hardly altered from the current requirements. The changes come to (1) a requirement that the parties produce documents (not merely identify), (2) a requirement that every document “a party refers” to be produced, and (3) and a list of each fact witness (with summary of testimony) a party may call for its case. (The requirement that a party disclose each individual who is a discoverable witness is unchanged, so it is not obvious what the new requirement adds other than a summary of testimony.) If initial disclosures significantly limited the need for discovery, then that effect would long ago have been realized. The Committee thinks it hasn’t, so how the new disclosures, which do not materially add to the content of disclosures, changes the need for discovery is unclear. What is clear is that the promise that disclosures will limit the need for discovery is dubious. Yet it is the justification for eviscerating discovery.
The proposal changes the content of expert disclosures. On the good side, the disclosure will include a brief statement of the expert’s expected opinions and production of all of the information relied on in forming the opinion. (The proposal is unclear about whether the information relied on is to be included in or identified in the disclosure, a significant difference.) The adverse side then must decide whether to take the deposition of the expert or accept a report in lieu of deposition. The expert is confined to testifying on matters “fairly disclosed in the report” in the party’s case in chief. Does the Committee intend that there be no limit on the scope of rebuttal testimony from an expert? And what does “fairly disclose” mean in this context? If an expert discusses a topic, is he or she entitled to testify about opinions on any subject under the topic? The standard is in the current rule, but one at least has the opportunity to depose the expert using the report to determine the true limits of the expert’s opinions, and the basis for the opinions. Given the minimal Utah case law on expert discovery and testimony, these standards seem awfully vague, and to invite a good deal of mid-trial on the question of whether an opinion has been fairly disclosed. Remarkably, there is no limit on testimony of an expert who is deposed. The substantive requirements for expert reports will change from a requirement that the report include “the substance of the facts and opinions” to a requirement that the report include a “complete statement of all opinions.” The latter is intended as more comprehensive, according to the Notes, and intended as a remedy to the problem that experts “often were allowed to deviate from the opinions disclosed.” So the proposal assumes that judges who permitted experts to deviate from their reports before will not do so in the future. A problem is that the language of the proposal is taken directly from the disclosure requirements of the Federal Rules. If that disclosure did suffice to reduce expert depositions, then it would be easy to track a decline in such depositions, and there should be a higher rate for expert depositions under state than federal rules. But the Committee thinks the Federal Rules allow too much discovery.
The Committee proposes that the standard for discovery be changed to require a party seeking discovery to show that the burden of responding to the discovery is proportional, i.e., that “the likely benefits of the proposed discovery outweigh the burden or expense.” The apparent aim is to discourage discovery, in large part because the new disclosure requirements obviate need for significant discovery. The disclosure requirements cannot bear such weight. They require disclosure only of what supports the party’s case, and largely track current disclosure requirements, and so do very little to obviate the need for discovery. The burden shift also imposes the burden on the party least likely to be able to make its case. How is a requesting party to know what the burden is on the responding party? There is no requirement under the proposed Rule 37 which requires a conferral to include that level of detailed information. In fact, the Committee never really identifies what the proportionality requirement applies to: the discovery request or to the discovery response. They yield rather different outcomes in many cases. As there is no case law at all in Utah on this standard, and the Committee does not suggest any other jurisdiction to look to, one can expect a significant period of litigation over discovery just to get the standards sorted out.
The proposed limitations on discovery methods and “tiering” of cases is one place the absence of empirical research stands out starkly. The categories are conjured. No explanation or evidence is offered supporting that cases should be categorized in these ways, or that the limits of discovery have any rational connection to the dollar values. There is an underlying problem, however. Throughout the presumption of excessive discovery implies an assumption that parties (or their counsel) are largely unable or unwilling to cooperatively manage discovery under the current rules. If they did, then to that extent voluntary limits on discovery – whether or not embodied in case management orders – would effectively confine actual discovery to levels appropriate to the case. Imposing formal limits by rule supposes that such cooperation is rare. The Committee has no evidence that is true. The proposals and Notes repeatedly presuppose the opposite – that counsel can and will regularly cooperate on discovery plans. Under the proposals, multi-party cases require high levels of cooperation as discovery is allocated to sides, and not parties. Whatever the facts on that issue, the proposals clearly disfavor discovery. The Committee’s explanation is that expanded disclosure limits the need for discovery. That looks to be a confusion. Disclosure is limited to evidence supporting the disclosing party’s case, something already required – if not often enforced. How is contrary evidence to be found? On what basis does the Committee believe that all or almost all small dollar value cases require just 6 total hours of deposition, 10 total document requests, 10 total requests for admission? Or, in a case involving $300,000 or more in damages, why 30 hours per side will be adequate in almost all cases? There are opt-out provisions, but they sit uneasily with the body of the proposals.
The Committee has proposed that discovery be allocated to sides, not parties. The first instance, as noted above, involves expert discovery. All parties on a side must agree on the method of discovery; if they do not, then adverse experts are subject only to one four hour deposition. The supposition is that four hours is ample time for an expert deposition, no matter the number of issues or parties involved. There is no provision for motions for relief from those limitations. It is plausible that such a motion constitutes a motion for permission to take extraordinary discovery, in which case it must be brought before the expert disclosures and choices are practically possible: they seem to occur after the close of standard fact discovery. The allocation of discovery to sides and not parties is also basic to the fact discovery processes. Each of the tiers allots depositions, etc., to each side. (The proposals do recognize three sides: plaintiffs, defendants, and third-party defendants. How counterclaims and cross-claims play is not explained.) There are no provisions for, and no mention in the Notes of, cases where a party is added to a case after the added party’s ‘side’ as exhausted it discovery methods. Presumably the new party may request leave to take some discovery. But a party has a right to discovery, not merely to the possibility of requesting permission. For the Committee, due process rights attach to sides not, as they used to, to parties. The proposals contemplate that a party could be denied any opportunity to take discovery before trial as ordinary course application of the rules.
Opt-out through stipulation is possible, and, remarkably, the Committee suggests will be the most frequent opt-out method. Remarkable because the Committee here supposes cooperation among counsel of exactly the sort it generally believes does not occur. Why parties may not opt-out of the discovery tiers at the outset of a case is not explained, and it is hard to come up with a plausible explanation for the constraint. Although the Notes say courts must grant a stipulation of this kind, the proposed Rule does not and the former is hardly binding. The proposal also includes a requirement that the parties themselves approve a discovery budget. How budgets became a proper subject for rules of civil procedure, is unclear. What purpose the requirement serves that might be appropriate for a committee on civil procedure to consider is equally unclear. Opt-out is also possible by motion from a party. Such a motion must come after exhaustion of regular discovery. The difficulties that poses for discovery planning and efficiency are obvious.
The proposed changes to Rule 37 are consistent with the reconceived Rule 26, and further illustrate difficulties in the revision. There are no schedules or deadlines for motions. Given the short schedules permitted to discovery, this is a surprising omission. Motions do not stay the discovery schedule. Hence, a motion to compel a cure of an inadequate disclosure is likely to be resolved half-way or more through the available discovery period. Or a motion to compel (or for protective order) in response to a document request is unlikely to be resolved in time to have any effect on the remaining discovery. In fact, given the time frames, discovery motions coming even mid-way through the period will not be resolved in time to be of use. Rule 37 does not provide for changes in the discovery schedule, and Rule 26 does not indicate that resolution of motions is a proper basis for altering the calendar. Such a motion would have to come before the close of fact discovery and after exhaustion of discovery methods. In other words, obstruction of discovery is strategically enhanced by the proposed Rules. On the other hand, asserting an objection alone is grounds for a motion to compel. The objection need not be unfounded or defective in any way. A proper objection is grounds for a motion to compel. Equally interesting, the proposed Rule 37 adds to the disclosure requirements of Rule 26. Rule 26 requires parties to timely supplement their disclosures. Rule 37 requires that every supplementation be accompanied by “an adequate explanation of why the additional or correct information was not previously provided.” Which proposed Rule governs? The conferral requirement has been expanded. Currently, one needs to confer with the party one seeks to compel discovery from. Under the proposed Rule, one will need to confer with “the other affected parties.” “Affected parties” is an unfortunate choice because so ambiguous. Normally, one would expect all parties to be affected by discovery or disclosure, as the material affects the case. But it is also possible that something else is meant – confer with the parties with a direct interest in the discovery? Or is it a round about way of including conferral with third parties subject to subpoena?
There are issues in the revisions to the proposed Rules intervening between 26 and 37, some of which are carried over from Rule 26. Rule 29 repeats the requirement that counsel certify budget discussions with their respective clients. It is at least odd for the Rules to intervene in the attorney client relationship. How it could be the business of the courts to monitor discussions between client and lawyer regarding costs is mysterious. What such a discussion entails where the representation is based on something other than hourly compensation is hard to make out. The certification serves no real purpose, and presupposes a level of attorney misconduct that should have some empirical foundation.
The proposed Rule 30 does nothing to cure the problem of remote depositions, sure to become more common. The Committee has retained phrasing which is hopelessly unclear: “A deposition taken by remote electronic means is considered to be taken at the place where the witness answers questions.” Where is that? If they mean the place where the witness is located, say that.
Rule 33 alters the business records option by relieving the responding party of any duty to provide the records. Instead, they will have to identify the records and make them available for inspection and copying. This cannot but delay a full response, which seems odd given the shortened discovery deadlines.
In Rule 34 the scope of document discovery is narrowed. Under the old rule, the scope of response was documents in the possession, custody or control of the responding party. No more. The revisions limit the response to documents in the possession or control of the party. Why the change?
Under the proposed Rule 36, a party will be permitted to deny the truth of a matter “if the truth of a matter is a genuine issue for trial.” There are no Notes explaining what that means. Because it is an addition, one assumes it means something different from a denial because the party believes the matter false.
For discovery requests, parties will have to state the reasons for objections. The failure to state an objection waives the objection unless the Court excuses the failure. There is nothing particularly objectionable about this except that it is not consistent with the aim of rapid discovery and trial. Permitting parties to resurrect objections whenever there is good cause is little constraint. Good cause is not hard to show, and, absent a sea-change in the attitudes of the trial courts, will mean that the normal course will allow objections to be raised late, admissions withdrawn, etc.
That illustrates one of the key defects in the proposals. They limit discovery and impose short timelines but do nothing to limit motion practice and little to make motion practice consistent with the aim of quick resolution. The revisions appear to aim at driving more cases to trial, not quicker just resolution.
The proposed revisions include a number of positive changes, and it would be unfair not to note at least some of them. The revisions to Rule 26 would improve final pretrial disclosures. The greater specificity of the disclosures should allow better trial preparation, and therefore more efficient trial presentation. The more detailed requirements concerning expert reports will also be beneficial. It may be that fuller reports would, independently of the other proposed changes, result in fewer depositions. More importantly, it would make trial preparation more efficient. Similarly, adoption of an order for expert disclosure and discovery removes an area of conflict, and is reasonable. Requiring meaningful disclosure and deposition of witnesses offering expert testimony but not specially retained, etc., is a significant improvement, clarifying a murky and disputatious area of practice.

The legislature, as you know, changed the statute with regard to Renewal of a Judgment by allowing the Renewal to be made by filing a Motion for Renewal (78B-6-1802)rather than filing a Complaint for Renewal of Judgment.
The language under the Utah Rules of Civil Procedures, Rule 9(k), Pleading special matters requires a revision, as it still reads: “Renew judgment. A complaint alleging failure to pay a judgment shall describe the judgment with particularity or attach a copy of the judgment to the Complaint.” Since you no longer are required to file a Complaint for Renewal, this language is no longer correct.

I oppose the requirement in Rule 26 that a party offering a witness must summarize that witnesses testimony.
That reqirement will inevitably lead to discovery disputes and thereby increase the cost of litigation.
First, the opposing party will argue that the summary was not sufficient. Is the general nature of the testimony required, is a summary required, is a detailed outline of the testimony required, is a video of the mock trial testimony required? Anything short of a full list of all questions and expected answers will result in motions to strike. This seems like a mess.
The second problem with this proposal is that it violates the work product privilege. If a party spends the effort to interview prospective witnesses, this rule presumably requires that party to give the results of that interview to the opposing party. Take an automobile accident case as an example. Witnesses are commonly listed in the police report and are equally available to each party. If a plaintiff interviews a witness and determines what that witness will say, this amendment requires the plaintiff to summarize the result of that work for the defendant. A better solution is for the defendant to call the witness and conduct their own interview.
The third problem with this rule is that it requires a party to actually go out and interview all witnesses before trial. While this may happen in larger cases, it doesn’t always happen in smaller cases. This rule would mandate full witness interviews in all cases.
The fourth problem with the proposed rule change is that in real life it may be impossible to comply with the rule without deposing a witness. For example, a party may wish to call an employee of an adverse party. It is common for such witnesses to be uncooperative before trial. Depending on the position held by the witness in the company, it may be unethical to conduct an informal interview with such a witness. In many cases it will be impossible to prepare a summary of the testimony. It can also be disadvantagious. Summarizing the expected testimony of a hostile witness simply gives the oppposition an opportunity to coach that witness and avoid the damage that would be done if that witness were simply to testify cold. A common practice under the current rules is to depose such a witness to “lock in” the testimony before trial. With the restrictions on the amount of depositions allowed under the proposed changes, it may not be practical to depose all of the witnesses a party wants to “lock in.”
A solution is rather simple. The rule should be changed to require only disclosure of the general nature of the testimony to be offered. If any summaries are required, they should only be required of witnesses who are parties or otherwise closely associated with a party.

The limits for Tier 1 discovery, contained in 26(c)(5) go too far. A better rule would allow 10 interrogatories, 10 request for production and 10 requests for admissions even in tier 1 cases.
For example, even in low end auto accident cases I send out an interrogatory asking if they were using a cell phone, if they claim mechanical issues with the vehicle caused the crash and if they had consumed any drugs or alcohol within 24 hours of the crash. That’s three interrogatories.
Admittedly, I could ask this information in a deposition, but sometimes a deposition of the defendant isn’t necessary. Further, defendants frequently have terrible memories in depositions. Interrogatories serve a purpose.

I am writing at the request of the Executive Committee of the Family Law Section which has been involved in drafting and editing this section which applies to the practice of family law. The EC requested the addition of allowing depositions of custody evaluators and financial experts in a letter to the Rules Committee on October 13, 2010. I am writing to renew that request to the Judicial Council on behalf of the Executive Committee of the Family Law Section.
Requested Addition:
j) Depositions. In addition to depositions as provided in Rule 30, and subject to the provisions of Rule 30, a party in a domestic relations action may depose custody evaluators and financial experts. A deposition of a custody evaluator or financial expert shall not exceed four hours and shall not be included in the 16-hour limit on depositions in Rule 30(d).
While we understand that the underlying goals to limit unnecessary and costly discovery tools, in family law cases, depositions of custody evaluators and financial experts such as property valuators, can facilitate the aquisition of follow up information that enables the parties to reach final agreements in negotiation, mediation or at pre-trial conferences and avoid the most expensive part of litigation — trial. For example, finding out the methodology of valuing a certain piece of property or finding who a custody evaluator interviewed or which tests were conducted on the parents, is essential in understanding all the facts necessary to either settle a case or litigate at trial. The absence of in-depth follow-up information form these expert witnesses actually serves an unintended consequence of forcing the parties to go to trial to obtain needed information on cross examination.
The obvious response to our request would be, “Well, if you need a deposition of the custody evaluator or financial expert, you can either submit a stipulation or file a motion for extraordinary discovery.” The problem with such an answer is that those methods only increase the costs of discovery through additional pleadings and court hearings, not reduce it, which is the overall objective of the new rules.
While we would acknowledge that the depositions of custody evaluators and financial experts are not needed in all family law cases, it is common enough to warrant an exception that allows the discovery without having to do an additional stipulation or motion with the court. We understand the need to balance the costs and benefits of variations from the general rules, but this is one form of discovery that is common enough in our area of practice to warrant an exception.
Sincerely,
Stewart P. Ralphs
Chair, Family Law Section, Legislation and Rules Committee

Requiring plaintiffs to provide HIPAA compliant releases potentially runs afoul of the HIPAA law itself and also allows defense to engage in a fishing expedition with no check on that expedition through notice to plaintiffs. Current practice allows the attorneys to work out the details of medical releases and provides adequate opportunity for defendants to get medical records while still providing notice to plaintiffs of the records being sought.
The division of case into small, medium and large categories and the consequent division of discovery rules by eah category seems to me to be shooting oneself in the foot. It is a return to the days of formalism, allowing lawyers to play games with categories in order to frustrate and impede justice. I cannot think of a more harmful approach to the courts than to create this overly technical Rule 26, which as it stands is already too long and too complex.
The drafters of the Rule on expert reports seem sepcifically to have targeted for circumvention the Supreme Court’s recent ruling on non-retained experts. I strongly object to the increased formalism and expense necessary to obtain opinion summaries from physicians who are treating a person and already busy enough to be unlikely to cooperate. This seems like an attempt to keep neutral medical evidence out of the courtroom. Such an attempt should be discarded forthwith. The recent ruling made perfect sense in enabling medical testimony that comes from the most knowledgeable person, the patient’s treating physician.
I understand that the intent of the Committee is to reduce the cost of discovery, but creating a more complex Rule 26 that can be finely parsed into tiny increments of compliance with formal requirement is only the path to more and more burdensome discovery motions. This Rule 26 is clearly a creature of committee and has the potential to become monstrously difficult to comply with and tremendously expensive, leading to motion after motion on whether experts’ reports are or are not compliant, on whether or not deadlines are met, and on whether or not testimony is within the intent of the report. Please, please scarp this proposed rule and give the existing Rule 26 some more time to get worked out. We don’t need a new set of complicated discovery rules every few years or even every decade.

I oppose the changes. Such a massive re-writing of the rules will do nothing more than further complicate litigation. The rules are reasonably clear already, and are reasonably understood by the attorneys. The attorneys know the procedures, have accepted them, and litigate according to the well established practices. Please don’t interfere with that.
Like many of the other comments, the requirement to designate experts within 7 days of the close of fact discovery is unreasonable. Further, what’s the great benefit in rushing such a designation? Perhaps you save a few weeks. That benefit is not so great that it outweighs a party’s right to the time necessary to reasonably prepare its case.
Like the other comments, I oppose the requirement to decide between an expert report and a deposition. A party should be permitted to pursue its claim or defense without having its hands tied. Leave the reports as a requirement, and allow parties to depose experts as they see fit. If they don’t want to depose, they don’t have to.
CMOs routinely contain deadlines for the submission of expert reports, and the depositions of experts. Those deadlines are agreed to by the parties. If the parties are fine with the dates, why interfere with that? The 28 day rule is needless interference.
The proportional standard should not become the new standard. The rules already contain safeguards against overburdening. Leave it as is.
Tiered discovery should not be implemented. The amount being sought does not necessarily dictate the complexity of the case. Furthermore, to limit a party’s ability to pursue or defend its case simply because that party is not seeking $300,000 or more seems odd. It seems to me to be offensive to the concept of an open and impartial justice system. I don’t believe a person should be prevented from issuing interrogatories in an effort to defend himself merely because he might only have a judgment of $50,000 entered against him.
If you want to tweak parts of Rule 26 to address a material issue, fine. But such extensive changes are unnecessary and will only complicate litigation further.

The new version of the rules is somewhat different than those previously proposed. Among other changes, this version allows the deposition of experts, albeit in an unrealistically short time frame, but I find the limitations on time and discovery draconian and in my view an apparent attempt to fix a problem that does not exist. I can see some wisdom in limiting time and reducing expense for smaller cases, but with that exception, I strongly oppose the proposed changes. There have not been many comments, I suspect that that is in part due to the fact that now that everything is online a number of attorneys are not aware of these changes, unlike earlier times when proposed changes were sent by mail to members of the bar.
Be that as it may, generally I see the rules as favoring the plaintiffs’ bar since a plaintiff can take all the time allowed by the pertinent statue of limitations, prepare the case and find experts and then file the case leaving defense counsel under these proposed rules with very limited time to scramble to be able to comply with the detailed initial disclosure required by proposed Rule 26 and conduct limited discovery in the short time provided. It will be very difficult for a defendant to try to make the detailed disclosures required in Rule 26 in the time allowed and will actually increase costs.
Rule 26 also requires disclosure of experts 7 days after the end of discovery and simultaneous disclosure of experts is required. This will increase costs because instead of simply responding to plaintiff’s expert designation defendants will now have to anticipate what the plaintiff may designate and retain more experts than may be necessary. Disclosure of experts should be staggered by at least 30 days.
The requirement that experts must be deposed within 28 days after designation ignores reality. I view this as an impossible requirement. This aspect of discovery is important to allow insurers to evaluate whether they will settle and to try to truncate this period to 28 days with multiple counsel and out of state experts is unrealistic as is the requirement to complete fact discovery in a $300K case in 180 days and above that amount in 210 days. That might work if an attorney had only one case.
The requirement of submitting a budget and a statement that the discovery is proportional and getting court approval to extend fact discovery is unreasonable. Why can’t the parties stipulate? This seems to be a solution looking for a problem which will only create more problems when at present there is not a problem.
To restate my general objections, these rules seem to have some helpful application to the cases in the $50K range, but for larger cases they require increased court involvement, increase costs and unduly favor plaintiffs, by limiting time and discovery.
I have other specific objections, but it is too tedious to type in the tiny comment box provided.

Dear Committee:
I acknowledge the difficult task you have undertaken. The bar is a diverse amoeba-like group with varying priorities, agendas, and capabilities. You have introduced these proposed changes in a normal manner spending many hours of your own time, without compensation, to explain the proposal to the bench and bar. However, given the major changes proposed, more time, more input and more consideration is needed.
I support the effort to reduce litigation costs and to reduce the load on the judiciary—but in my practice the proposed changes will do the opposite.
Rather than get into specific changes to the rules item-by-item which others have already done, I wanted to comment more broadly. If I step back and evaluate on a big-picture basis how these rules will affect my clients and my practice, a few major issues come to mind.
LESS DISCOVERY TRANSLATES TO MORE EXPENSE, MORE TIME, AND MORE TRIALS
Limited discovery hampers one’s ability to fully evaluate a case. With limited information in the early stages of a case, a case cannot be resolved through settlement or moved quickly to mediation or some other form of ADR. Written discovery is the quickest and least expensive way to discover facts. Take written discovery away and limit depositions as proposed and a party will not have facts necessary to make an informed decision on settlement—one that will survive the light of 20/20 hindsight applied by auditors and corporate managers on the defense and by malpractice experts reviewing plaintiff’s counsel. Without correct information, cases go to trial. They may be settled during trial because the discovery has not taken place until trial—but to trial they will go.
So big picture, less discovery… more trials. If the goal of the proposed rules is to give attorneys more trials, then fine. If the goal of the proposed rules is to give lawyers the tools they need to evaluate and resolve cases early, then these rules do not do this.
NO EVIDENCE SUPPORTING THE NEED FOR CHANGE
I understand the committee is concerned with the rising cost of litigation but I have not seen any evidence to support this conclusion. Is the cost of litigation going up for Utah litigants? Is the cost of litigation going up materially faster than the cost of other goods and services? What portion of the increase in fees is simply attributable to lawyers wanting to charge more for their time? Are there not alternatives available to litigants to keep the cost down (small claims, § 321 arbitration, voluntary arbitration, etc.)? How can we justify such a wholesale change in the Rules without evidence to support this change? Is there a less restrictive way to test these new Rules short of wholesale application? Can these rules be voluntary like they are in Colorado?
TO WHOM DOES THE LAWSUIT BELONG?
Traditionally the lawsuit belongs to the litigants. A litigant has a right, sometimes a constitutional right, to bring a case for redress of grievances and to defend allegations of grievance. How much could or should the Rules interfere with those rights? How much should the State be allowed to regulate the exercise of those rights?
The courtroom has been historically equated to the marketplace. To operate most efficiently those participating in the marketplace must have correct information. Lack of correct information leads to inequity and inequity leads to lack of confidence—in this case lack of confidence in the court system.
Again, despite my dissent I respect your willingness to take this on and your efforts to publish your efforts to the bench and bar. Unfortunately, given the current economic client, the attorneys I know are extremely busy and have not even heard of these proposals. My suggestion for the Rules is to take some more time or perhaps try these changes out voluntarily or in a more limited fashion before wholesale adoption.
Thank you for your consideration of these comments.

I applaud your efforts to make the courts more accessible to the general public. It will be interesting to see how this experiment works. I am hopeful it will have positive effects.
I strongly recommend that Rule 1 be amended to make the new rules effective to new cases filed after the effective date. Imposing the new rules on pending cases midstream will likely result in mayhem. Most cases will already have scheduling orders in place that have been planned out, worked around and relied upon. To impose the new restrictions on these cases would be extremely unfair, prejudicial, confusing and unworkable. Moreover, many pleadings will not be compliant with the revised rules, making it unclear which discovery tier applies and to what extent. It may also require mass amendments of pleadings to comply with the new rules, such as the amendments requiring more detailed answers.
Applying the new rules to pending cases would be unworkable.

Regarding Rule 26(a)(3), in order for this rule to be effective, experts must be strictly restricted to offering only opinions which they have identified in their disclosures or expert reports. I often get expert reports that ramble or are vague as to their opinions or the basis for their opinions. I have spent hours deposing experts trying to pin down exactly what opinions they will offer and how they reached those opinions. I have also seen experts greatly expand their opinions when they get to trial. If an expert only produces an expert report, the rules must allow the expert to be excluded from testifying if the report does not sufficiently describe all opinions, or does not adequately identify the facts and bases upon which each opinion is based. Experts should be prohibited from offering opinions at trial other than those identified in the report. Experts should not be allowed to give pithy opinions in a report, then elaborate upon them at trial.

Mr. Wikstrom and Ladies and Gentlemen of the Committee:
I am writing this letter on behalf of The Board of the Utah Defense Lawyers Association (“UDLA”). As you are likely aware, our organization is comprised of over 200 lawyers in the State of Utah who litigate wide ranging matters and claims including, among other types of claims, medical malpractice claims, personal injury claims, premises liability claims, and construction defect claims. We also work closely with a very large number of plaintiffs counsel in this State. The UDLA is concerned with the scope and breadth of many of the changes to the Rules. This letter is being sent as a comment on the web site provided by the Committee. A hard copy will also be hand-delivered to Francis M. Wikstrom, Chair of the Supreme Court’s Advisory Committee on the Rules of Civil Procedure.
Before addressing concerns that the UDLA has with particular rules, some general comments need to be made. First, the changes to the rules are sweepingly broad and create major changes not only to how a particular attorney may procedurally handle his or her case, but will alter how attorneys and legal offices conduct their business, from how and when they should investigate and/or speak with witnesses, bring motions before the court, and interact with opposing counsel. Second, the tone of the comments and some of the rules suggests that not only that less discovery should be had, but the amount in controversy, and the facts of the particular case should be driving force in discovery determination. Third, the Committee cites a few surveys and one, apparently opinion piece, from the New York Times in support of these new rules. No empirical evidence supporting the broad changes is identified, including any study as to Utah in particular or in litigation costs in general.
The formulation of the proposed rules is also problematic. The new rules contradict or conflict with unmodified rules and, in some cases, existing case law. The new rules also appear or some have already argued that these rules conflict amongst themselves. As is noted below, most disconcerting is that the new rules either due to ambiguity or the harshness of the new requirements will result in the filing of multiple motions and more expense, not less, which appeared to be the impetus of the rules. Finally, the rules may run afoul of existing federal and state law, including due process and equal protection concerns.
The following is not a complete list of concerns, and for the sake of brevity, the Board has not commented on all of the positive changes in the proposed rules. Specific concerns with the proposed rules will be taken in turn. At the end of this letter, we have tried to address some concerns relating to the impact of the proposed rules.
Rule 1 states that the proposed rules will take effect immediately unless the Court sitting in that matter determines that the enforcing the new rules would be infeasible or result in injustice. There are three problems with the timing. First, as a matter of practical reality, all cases in Tier 1, and a large portion of Tier 2 and 3 cases, will have to have to be evaluated by the attorney immediately or shortly after the new rules go into effect. Several personal injury attorneys, both plaintiff and defense, handle a large percentage of Tier 1 cases. With fact discovery being closed 120 days after the receipt of initial disclosures, most scheduling orders would have lapsed or would lapse without discovery being completed. Interrogatory or requests may be outstanding at the time of approval of the Rule and some attorneys may refuse to provide responses in the lower tier cases. With expert designations to be made by day 127, most cases in Tier 1 would have passed that date, or it would be infeasible to complete discovery. Therefore, most cases, in our experience, will run into the two factors.
Second, whether a particular case will run into this concern requires that the handling attorney, on both sides, review his or her cases upon passage of the rule, to determine if the case can be completed under the new rules or not. This is time wasted on both sides of the matter, in some cases costing the clients money, to review a scheduling order that has likely been reviewed by both attorneys and the Court.
That leads to the third concern, which is the Court will be involved in a matter for which it has no time or need to be involved. If the parties agree that the case would not be feasible under the new rules, they would still, on our reading, have to present the Court with an order finding that the new rules would not be feasible. If one of the parties disagrees, then a motion and hearing will need to be requested.
Another concern with the new rule is that it states that a specific rule overrules a general rule as does a statute. This may create some conflicts and a potential due process issue. For example, as the committees is aware, Utah Code Ann. § 31A-22-321, as it is presently written, allows slightly longer discovery than the proposed Rule 26 and allows both parties to conduct additional 90 days of discovery if the arbitration is appealed for a trial de novo. As the committee is aware, the language of this statute allows only plaintiffs to elect arbitration and thus a longer discovery time to present its claims, but there is no mechanism for defendants to elect a longer discovery period. Therefore, in a lower value automobile accident case, a plaintiff’s counsel can choose his discovery time period, but the defendant’s counsel cannot.
The UDLA feels that Rule 8 is improved as it requires some more specificity in the claimed amount of damages. The rule suggests that all damages are included and punitive damages are not. This raises three concerns. First, many plaintiffs suggest, and may be correct, general damages are within the purview of the jury and should not be disclosed. However, if a plaintiff argues at trial that he or she is entitled to more general damages and exceeds the high end of a particular tier, a competent defense counsel will likely argue for a mistrial as they could not take more time to address the claim.
Second, in some cases, it is the punitive damage claim which causes the need to investigate more carefully and conduct more discovery. Many cases, like drunk driving cases, dog bite cases, and wrongful evictions, involve minimal or modest special and general damage claims, but a plaintiff may allege tens or even hundreds of thousands of dollars in punitive damages. As the committee is aware, a different standard of evidence applies and extensive discovery may be required on both sides to determine if the claim will stand.
Third, this rule coupled with Rule 26 may be constitutionally infirm. Under both Federal equal protection requirements and Utah’s open court provision, a personal or corporate defendant should be allowed equal due process to conduct discovery and confront claims whether these claims arise for special, general or punitive damages.
Although not a large concern, but as a matter of practical application, there is also no statement in the rule for calculation of contractual interest, pre-judgment interest in personal injury actions, costs or fees that may be included, and attorneys fees. Interest increases with the time of the case and attorneys fees are a moving target, admittedly difficult for both sides to calculate at the beginning of a case and then may vary as it is the Court at the end of a case, which likely then determines the amount of the award.
Rule 16 raises a few concerns. First, the Rule requires the Court to direct the parties to mediation or other ADR process. While mediation is often a useful tool, it is not appropriate in all cases and a blanket requirement that it be done or an order obtained from the Court indicated it is not feasible may add undue expense. For example when parties are only a few thousand dollars apart, mediation may cost more than it might save in compromise. It should be noted that case law precludes forcing a party to contribute a specific amount or additional amount mediation (or forcing a party to accept less) and a right to jury trial precludes forcing parties into binding arbitration.
Additional, “ADR” is not defined. It is unclear what the Committee is suggesting. If the Committee is suggesting a non-binding panel review or arbitration, which, while potentially could bring issues to light, would not be cost effective. Simply stated, it is unclear what the process would entailed and what mechanism exists for enforcing this rule. Additionally, we would note that mediation is most effective when the parties and a third party have access to all facts and have had the opportunity to review them prior to mediation. Without discovery such as interrogatories and fewer requests for production in the lower tier cases, mediation would only be fruitful at the end of the discovery process. With the tightened deadlines set forth in Rule 26, the parties will likely have done all discovery, including designation of experts (with the incumbent costs) to have the information. At that stage, the only cost would be the cost (and potential risks) that would be incurred at trial. However, at present, parties may and often elect mediation prior to expert discovery, or upon resolution of certain facts. The new rules would require Court intervention to obtain such a change in the plan. Further, under the present rules, the parties can plan ahead for such mediation at a future date and often work that date into a case management order.
Rule 26 raises several concerns and represents the bulk of our comments. First, as this committee is aware, plaintiffs counsel can prepare and access information for months and in some cases years prior to filing suit. The new rules exacerbate this problem, which is apparent in the new initial disclosure requirement. First, at most, a defendant will have 28 days after receiving plaintiff’s initial disclosures (in any case no more than 42 days after answering the complaint) to compile and produce all documents that he has or has access to to defend the action including witness summaries and all persons he intends to call in his case in chief. It is impracticable, unrealistic, and certainly not cost effective, to expect, even in a simple but disputed liability case, for a defendant (or for that matter a plaintiff) to locate, interview, and summarize the expected testimony of one or two fact witnesses and the investigating officer within this time period. Further, the present case law prohibits defendant, but not plaintiff from speaking to a treating physician unless done by subpoena or in a deposition. A defendant cannot address what someone might say at trial or what exhibits he might present within the initial disclosure timeframe.
As noted by others, a summary of a witness interview done by an attorney or his office can also be protected work product. More to the point, with the exception of one’s own client and a client’s employees, an attorney at the initial stages of case, may not, with any meaningful accuracy, be able to say what a witness might say at trial. Memories fade, previous statements are changed when oaths are administered, and views change when a speaker is presented with new or unknown facts.
Both parties producing documents, rather than a description, is also not cost effective. Again, in even simple car accident cases, both parties have copies of several documents, included, but not limited to, police reports, treating physician notes and billing records, car estimates, photographs and similar items. A description may save costs in both the short and long run.
A related issue arises from the requirement to provide an insurance policy. In the personal injury and medical malpractice case the insurance policy is almost never sought, requested, or provided. A declaration page provides the levels of coverage. A policy holder may receive endorsements and amendments from time to time. When a policy is requested, the insurance company often locates the applicable policy and endorsement, which is a computer aided search. The applicable provisions are then printed, compiled and mailed with a certification under oath that the policy is accurate. This represents a true and unnecessary cost. One local in-house office for a major insurer receives approximately 350 personal complaints a year. The estimated cost and charged cost to those requesting a new copy is $35 per policy. That firm alone and its insurance company could spend $12,250 a year (plus mailing and delivery costs for each) unnecessarily. Experience indicates that a declarations page is usually sufficient to demonstrate applicable policy limits and to identify the insuring entity and types of coverage provided and if the Committee would like to require an item to be produced, it should be limited to this page.
The expert disclosure requirements are also troubling. First, the rule indicates that an expert can be deposed for no more than four hours. In some cases, like construction defect cases involving several alleged problems, a knowledgeable expert (construction, engineer, or economists) could easily be deposed for more than that time. Also, the rule has guidelines for total fact deposition time. Therefore, experts are not included, presumably. It seems that this would allow for some cases with experts that the only limit on expert depositions is four hours per expert.
The disclosure time for experts, especially in Tier 1 cases, is not realistic. Again, in a simple automobile case with minor injuries and contested causation, a defendant would have 127 days from the date of plaintiff’s initial disclosures to have a medical examination done. Since no interrogatories are allowed, the deposition of the plaintiff is the sole mechanism to learn the names of any prior treating physicians or similar injuries. Once deposed, the defendant can then compile records, which takes at least one month with HIPPA and Rule 45 compliance. Assuming that the Plaintiff can be deposed within 30 days of the initial disclosures and all records sought are received within 30 days, defendant has 67 days to decide if the examination is necessary, schedule the examination, and have the report’s conclusions and a summary prepared to disclose to plaintiff’s counsel. It would also be possible to just schedule the medical examination and cancel for a lesser fee from the beginning of the case. Neither solution is practicable or cost efficient. It also invites what the Committee apparently believes is the norm; that is the professional examiner. Experts in the small cases would be needed quickly and ready to perform on short notice and work on rushed schedules. The result would be a rise in a few “at the ready” examiners. The 28 day requirement for depositions is also impracticable if not impossible. Most physicians, treating or expert, have their schedules set several weeks in advance. The undersigned have, at times, working well with opposing counsel and doctors, spent two to three months setting up a deposition.
As suggested by others, seven days, in most cases, is not sufficient time to receive, analyze and decide if seeking a report or deposition is the best course of action. This is more often true in cases with multiple parties who must make this determination together. A new rule with such a deadline requirement should allow the other party or parties 30 days to make their election. If the Committee is going to place a deadline on the timing of expert depositions, we suggest allowing at least 90 days to conduct those depositions.
A report versus a deposition is also, as stated by others, a classis Hobson’s choice. An attorney summary of an expert’s testimony may not fully encompass the expert’s opinion and a deposition question, may go unasked, that would have been asked of an expert who provided a report. On the other hand, Courts, juries, and the parties may disagree on a reasonable inference taken from a report, or a fatal flaw in a test or basis for an opinion may only arise in cross-examination at trial leading to the exclusion of an expert. Further, the Court as a gate-keeper of Rule 702 experts may need both a deposition and report to rule on a motion in limine. In some cases, Courts now order an evidentiary hearing, which one party may argue under the new rule amounts to a free deposition.
The proposed tiered discovery potentially violates Federal due process and equal protection right and the Open Courts provision of the Utah Constitution. A $40,000 claim, while being a small matter to a large corporation, would likely bankrupt many Utah families. Each party should have the right to conduct the discovery and is entitled to the same due process and protections regardless of the amounts claimed. Some cases are expensive and some are not and the dollar value may make little or no difference in the discovery. A simple, yet common, example illustrates this point. Let us take two nearly identical cases. In both cases the plaintiff alleges that the defendant rear-ended him at a speed of 20 miles per hour. In both cases, the defendant alleges that the plaintiff merged into his lane improperly at a slow rate of speed failing to allow him enough room to brake and causing the accident. In both cases two witnesses are identified as well as an investigating officer. In both cases, the plaintiff alleges minor soft-tissue injuries with one hospital visit to the emergency room, one treating physician visit, and chiropractic care for four months with medical expenses of $15,000 and two weeks off of work. However, the first plaintiff claims lost wages of $9.00 an hour for his full-time job and his lost wage claim is $720. The second plaintiff is an executive account manager who claims direct lost wages of $10,000 and lost commissions of another $10,000. In both cases, the plaintiff supplies information fully supporting the wage loss claims, but the need for the extensive chiropractic care is questioned in both cases. Both claim $20,000 in general damages. The first matter is a Tier 1 case where $35,720 is claimed. The second is a Tier 2 case where $55,000 is at issue. Liability is the primary issue and both defendants may choose, if they wish, to also attack the medical treatment. Both defendants pay nothing if they prevail on liability. However, the first defendant has 3 hours to depose the two witnesses and the police officer, and if he has any time remaining, the treating physician and the chiropractor. The second defendant has 15 hours to do the same tasks. In addition to the equal protection implications, this example also illustrates the inherent problems of Tiers based on the monetary value claimed, where is a line to be drawn changing allowable discovery?
Regardless of the tier, if the Committee desires to make the changes, the time period for all three tiers should be extended. At the lowest tier, 180 days would be a more realistic and attainable goal for fact discovery. Additionally, some fact witnesses, like treating physicians, employees of the other party or those who assert some type of privilege, can only be contacted through the opposing party or through subpoena, and the examining attorney can only speak to, what is often a key witness, in the deposition setting. Therefore, we request that the Committee extend the deposition time for these type of third-party witnesses.
As alluded to above, three hours of fact discovery is insufficient in many small cases. First, the undersigned believe that since the rules allow for seven hours of deposition for a party, the three hours does not include the parties. Again, in a small automobile case, causation and/or liability may be disputed. A party may wish to depose the police officer, one fact witness, a past treating physician and a present medical provider such as a chiropractor who is not a designated expert. This will exceed his available time. Rule 26 and 29 would allow the parties to move or stipulate for more time, but a trip to the Court after exhausting the deposition time is not efficient.
Interrogatories and requests for production and for admissions save time, resources and money. A standard set of discovery requests in a personal injury case can be generated in a relative short time. Necessary, and often undisputed, information can be obtained and a respondent has a month to compile and thoughtfully answer the questions including a clear, non-rushed response how the accident occurred, the amount of medical bills, the names of employers with telephone numbers and addresses, the names of past medical providers, ongoing medical concerns and present medical treatment. Depositions can then be shorter and more useful as the examiner can shorten the questioning or refine the deposition to address specific issues or clarify concerns. Plaintiff’s counsel can often avoid deposing defendants altogether with responses regarding medical conditions or medicines, cellular phone or texting issues, or mechanical issues that might have contributed to the subject accident. These are also all tools for summary judgment, which often serve to resolve or partially resolve legal issue, which in turn may resolve the case. The limitation on interrogatories serves no purpose to reduce costs. In fact, in personal injury cases the limitation will result in more motion practice and increased costs. First, as a practical matter, the examiner will ask every question that would have been an interrogatory. That will add time to the deposition. The deponent will also have to answer these questions, with no time to prepare or to refer to documents. That will lead to increase in time as deponents try to reconstruct lists of past medical concerns and treating physicians, when they could have reviewed medical records at home in response to an interrogatory. Also, the deponent may simply not recall as she sits in deposition. Under the new Rule 37, the examiner may make a motion or recess until a later date. The result is more time and costs in Court, more time in the deposition, and more disputes between counsel regarding a party’s ability to recall relevant information. While we disagree with a limit of written discovery, this Committee should allow a higher number of interrogatories and requests for production at all three levels. Additionally, a party should be allowed to use requests for admission after the close of fact discovery to limit disputed issues prior to trial or other alternative dispute resolution process.
The Committee has also introduced the concept of proportionality. This standard is presently, to our knowledge, used only in the Federal mass tort ligation cases. The present Rules of Civil Procedure already provide remedies if discovery is not relevant, is unduly burdensome, or otherwise objectionable; which raises the issue as to why proportionality is even needed. More importantly, this concept is also subject to possible due process concerns. Relevance is defined in the Rules of Evidence and is the subject of volumes of case law. Proportionality is, by the reading of the rule, a standard that varies from case to case. The suggested factors do not aid in any analysis. If the defendant is bearing the cost of the discovery, is it a factor or not? A plaintiff in a small case may claim that a small fender bender denting her bumper, which was not repaired, caused her to incur 40 chiropractic visits resulting in $5000 in medical expenses. She may only claim another $5000 in general damages, but with interest cannot proceed in small claims court. Defendant, not believing that she was injured, on his own or through his insurance provider, retains at the cost of $6000 a biomechanical engineer and a doctor who opine that the accident could not result in injury. The Plaintiff may argue that his client should not be subjected to the medical examination because of the burden placed on her and that the accident reconstructionsist report should be disallowed as it would require his client who is only claiming $10,000 to spend $3000 on her own expert. Defendant’s expert could result in a no cause of action, but he may not be able to get the examination and may lose the $3000 he already spent on the other expert because a court may determine that the proportionality standard has been violated. However, the discovery was clearly relevant and necessary to his defense, and well within his State and Federal rights to pursue.
The other issue is how an attorney or the Court may be judged later. A defense attorney may advise his client that the discovery would help, but that he thinks the Court would find it disproportional. He chooses not to engage in the discovery and loses the case. Will he be able to raise his good faith belief that his discovery was disproportionate when he is sued for malpractice? The reverse scenario is equally troubling. A court may find a certain discovery to be disproportionate and cases are appealed to the Supreme Court. What is the standard of review to be applied on appeal, which will happen often, is it trial court discretion, interpretation of law, or mixed question of fact and law? Because facts vary in every case, each and every ruling on proportionality may present a potential appealable issue.
Finally, the deposition restriction under Rule 26 is problematic as to treating physicians. Again, three hours in insufficient in small cases where medical causation is at issue. Defense counsel can only speak with physicians in deposition settings. In most small personal injury cases (under $50,000), Plaintiff’s counsel usually identify two to three present treating medical professional and often and equal number of past treating physicians. Usually, most are identified as non-retained experts with a summary that may or may not comport to the treating physician’s notes. If causation is really at issue, and one or more fact non-medical witnesses are identified, three hours will not suffice.
Rule 29 would require the parties to address the above-referenced proportionality issue and agree. First, in essence this should be done under the present Rule 26, which presently requires the attorneys, who know the case first-hand, to have the attorney planning meeting including what discovery can be had. If they need assistance or disagree, Rule 16, as presently written, allows the parties to have the Court enter a scheduling order. Although anecdotal, our experience is that subpoenas turn over helpful, relevant information, for or against, a plaintiff in at least 20 to 25% our cases and in most cases the information verifies known relevant information. Some Plaintiff’s counsel would argue that a 20% return on discovery is not proportional in an individual case. We believe that this is well used discovery and at minimum provides relevant information.
In sum, the parties will agree and submit the stipulation to the Court for order or one party will make the motion. The other concern is that Rule 29 suggests that some discovery has to be exhausted. We do not believe that the parties who agree that four short deposition will take more than three hours, should have to take three of the four and then present a motion to the court.
The other concern with this rule is the disclosure of the approved budget. Budgets with clients are almost always intermixed and dependent on attorney work product and attorney client communications. My budget may include activities that relate to impeachment investigation, surveillance (until the same becomes discoverable), retained, but consulting experts, and other activities. In sum, the disclosure of a budget interferes with relationship between counsel and client and the independence of an attorney and this requirement should be eliminated from any proposed rule.
The undersigned agree that independent medical examination may not be the correct nomenclature. However, that does not correlate with the drastic change and commentary on the new Rule 35. First, the Committee cites a New York Times article that opines that defense medical examiners are paid hired guns. By placing this note with this tone and foundation, the Committee appears to demonstrate a bias against the defense bar generally, and if the Rules are passed, would have published its apparent bias for public consumption. Further, the committee cited an Oklahoma case for the proposition that audio and video recordings should be allowed. The case was researched and read. The case cited the controlling Oklahoma statute, which 1) allowed a party to have someone present already and 2) placed the onus on the examinee, not the party requesting the examination, to show good cause why the examination should not take place. As the Committee notes, in Utah, the requesting party bears the burden. In sum, the Committee cited as its basis for the new rule selected law from another state, which unlike Utah places the examinee in the position to show the exam is improper.
More disconcerting; however, is the lack of direction supplied by the rule. The rule says the examinee can record an examination, but does so, without any direction or controls. Can a party show up with a Dictaphone over which they exercise complete control or a video camera held by another who due to lack of experience or bias only films portions of the exam? Is the person who films or tapes subject to examination or must they be a third party? The rules gives the requesting party the right to object the recording if it would unduly interfere. This suggests that the party to be examined must notify of the other of his intent to record and the method in a timely manner, but no direction is given. Again, this will result in motion practice and appeals that could be prevented with clear rules. If the exam is to be audio recorded, for example, one could argue that it must be done with a stationary recorder with some type of oath by the recorder that is it unaltered and original, and the recording party must timely provide a true and correct copy of the original unaltered recording. However, without guidelines, the Committee is inviting extensive motion practice and unnecessary costs.
We would suggest that if the final rule allows a recording, specific requirements be met. First, the manner of recording the examination be set forth in a notice within 5 business days of the notice of the medical examination. Second, the recording be made by a third-party. Third, the recording be at the examinee’s cost. And finally, a copy, certified as true and correct by the third-party, be provided to the party that requested the examination.
Rule 36 would allow a party to deny a fact that is a “genuine issue for trial.” This is unclear and confusing. There is no comment explaining this change. Most facts in liability and causation cases are genuine issues for trial. Damages are genuine issues for trial. Light colors in intersections are genuine issues for trial. If a party knows a fact to be true or false, it should answer the request, not evade and protract litigation arguing that the otherwise proper request is a “genuine issue for trial and is therefore denied.” Also, this rule would seem to conflict with the controlling standards of a deposition. Certainly, whether a matter is a genuine issue for trial would not be the basis for counsel to instruct his or her client not to answer a direct fact question.
In addition to the concerns set forth above, there are interpretational and situational issues with the rules. For example, the limits of the rules seem to be per party, but some may argue that the limitations are per side. If there are co-defendants, does each get three hours of fact depositions? Are the limits per party and claim, or are they combined? For example, one plaintiff sues two parties for $45,000 each believing in a personal injury case that each is 50% liable. Does each defendant have its own set of Tier 1 discovery, Tier 2 discovery, or does each share Tier 2 discovery? What about cross-claims and third-party claims?
Rule 15 allows a party to amend, but the new rules provide no time-line as to when that is timely and should it vary based on the discovery tier. Amendments are to be liberally allowed, but how does that change the controlling deadlines? Similarly, there is little guidance as to cross-claims, counter-claims and third-party complaints.
Rule 9 removed the deadline for allocation of fault, but no meaningful deadline or guidance is set forth as how that may affect a case.
Another concern arises from the initial disclosures requirement. Can a party indicate that information will be supplemented as to their claims? If a party fails to provide a computation of their damages in the Complaint and specify a tier, one could argue that it is subject a 12(b)(6) motion or a Rule 37 motion. This raises another issue, which is what happens to discovery while a Rule 37 motion is pending. Are parties required to file another motion to stay discovery?
Finally, we are concerned with the impact of these new rules on the Supreme Court’s Rules of Civility. We are committed to the civility standards. However, if a case has 120 days of fact discovery, or 210, extensions to deadlines cannot be given absent Court order. As noted above, dates cannot be changed without budgets and proportionality statements. Both sides of the bar may be wary to give anything then more than very short extensions for discovery responses. However, at present, Parties on both sides of the aisle give 30 day extensions for discovery concerns or set a date back to discuss mediation. Medical examinations are postponed to accommodate schedules. However, the mechanism to alter the deadlines under the proposed rule is onerous, time consuming and potentially costly. Some counsel will likely refuse to grant extensions due the burdens involved and point to new deadlines as the basis for any lack of civility.
In summary, we believe that the Committee should review and address these concerns before forwarding the proposed rules to the Supreme Court. Again, we believe that there is a lack of empirical evidence demonstrating a need for the suggested changes, especially to the degree involved. Many of the deadlines are impracticable if not impossible in many cases to meet. Many of the cost saving discovery tools, such as interrogatories and requests for production of documents, have been eliminated or drastically reduced. True requests for admission may have been rendered useless. The new proportionality standard is untested and is open to various interpretations inviting motion and appellate practice and raises serious due process and equal protection concerns. Similarly, tiered discovery is subject to those same concerns. Finally, the proposed rules reduce discovery to a one size fits all matrix based on an amount of a claim or in some special cases a type of claim, without regard to the wide potential array of liability or causation issues; issues best left to the members of the bar to address as each evaluates his or her cases under the existing rules and established case law, with recourse to a responsive judiciary for guidance as needed.
Lloyd R. Jones
Lloyd R. Jones,
President,
Utah Defense Lawyers Association
UDLA Board Members
Anne Armstrong
Ryan Schriever
Joseph Minnock
Robert Thompson
Peter Christensen
Kristy Larsen
Bruce Burt
Pete Petersen
Chris Purcell
Scott Dubois

Re: Response to the Proposed Rules Governing Civil Discovery
Dear Committee:
The purpose of this letter is to express both our support for certain proposed amendments to the rules governing civil discovery, and also to share with the Utah Supreme Court Advisory Committee (“Committee”) our concerns with certain areas of the proposed rules. First of all, the attorneys of Holland & Hart LLP (“H&H”) appreciate the great effort and amount of time that must have been spent by the Committee in studying problems related to the current discovery rules and in drafting the detailed drafts of the proposed discovery rules. Further, H&H appreciates the opportunity to respond to the proposed rules, and we hope that our remarks are given due consideration by the Committee in making its final decisions.
As stated in the background commentary for the proposed rules, the Committee has come to question the premise upon which Utah adopted the federal discovery rules. As recognized by the Committee, the federal rules were “designed for complex cases with large amounts in controversy.” H&H believes that the proposed rules, as currently written, are a great improvement for relatively simple cases involving amounts in controversy that are less than $300,000.00, and in cases involving one plaintiff and one defendant. H&H recognizes the burdensome expense of traditional discovery in these small disputes. However, the typical cases managed by H&H and other large firms in the Utah market do not fit within the scheme contemplated by the proposed rules. H&H often represents clients that are involved in multi-party litigation with millions and tens of millions of dollars in dispute. In most of these cases, the simplified and expedited discovery process contemplated in the proposed rules subjects our clients to unreasonable risk in the litigation process, whether the dispute is at the settlement stage, summary judgment stage, or trial stage. For the most part, the current discovery rules, based largely on the federal rules, are more practical for these “complex cases with large amounts in controversy.”
The following is a list of areas in which we support the proposed rules, and of areas in which we have concerns that arise either directly, or indirectly, from the proposed rules.
1. With respect to heightened initial disclosure requirements, H&H fully supports the Committee’s proposal. H&H agrees that a more comprehensive initial disclosure will support more focused and efficient initial discovery.
2. With respect to Proposed Rule 26(a)(3)(B)’s limits on expert discovery, H&H has serious concerns with the Committee’s proposal. The proposed rule requires that any expert discovery, beyond the initial summary report, be limited to either four hours of deposition or a written report. First of all, the proposed rule fails to expressly state who decides between the two options. This may be implied in the proposed rule, but the proposed rule should expressly state that the party seeking further discovery of the expert’s opinions be allowed to decide between a deposition or a written report.
Second, and more importantly, a written report containing a statement of the opinions the expert will offer at trial does not in all cases obviate the need for a subsequent deposition. Simply being offered a written report denies the party the opportunity to question and fully analyze the bases of an expert’s opinion prior to trial. In many cases, the ability to take an expert’s deposition after having received a complete written report furthers the goal of Utah R. Evid. 702 in keeping junk science out of the courtroom. Furthermore, our experience suggests that expert witnesses will be permitted to expand upon the opinions set forth in reports as “elaboration,” “clarification,” or “explanation.” A deposition is the best available means to discover and prepare for such expansions.
3. Another concern of H&H relates to the two categories of discovery – standard discovery through the tiered system and extraordinary discovery. H&H recognizes that the Committee has sought to provide an avenue for more in-depth discovery for complex, commercial litigation disputes through the extraordinary discovery procedures. However, H&H has serious concerns.
One concern is with the limits to document requests. Document requests differ from other types of written discovery in that the burden to the responding party is not as onerous. The responding party need only produce the relevant, non-privileged documents that the party already has. Nothing needs to be created, as in the case of interrogatories or requests for admission. Thus, the burden posed by document request is comparatively slight. The benefit of document requests, however, is great. Records and other documents frequently have the greatest impact in a case because they are generally prepared outside the litigation context, making them a more reliable source of evidence. Thus, H&H believes that document requests should be subject only to the limits currently in place.
Another concern is that going through the mandatory “standard” discovery process before being allowed to seek additional discovery beyond that contemplated in the standard process will result in delay and unnecessary expense to our clients. In the vast majority of our matters, the tiered-limits proposed for standard discovery will not be nearly sufficient. Thus, we would need to proceed through standard discovery in every matter only to then seek, by either motion or stipulation, additional discovery. H&H proposes that the provision requiring a party to reach “the limits of standard discovery” prior to seeking a stipulation or moving for extraordinary discovery be omitted from the final rules.
Further, perhaps the greater concern is the uncertainty of whether a motion for additional discovery would even be granted. In many cases it will be in the best interests of an opposing party to refuse to stipulate to additional discovery, so the option of additional discovery would be left in the hands of the judge. Although, in theory, H&H supports the proposed proportionality analysis, H&H is concerned that a judge will still have the discretion to simply deny a motion for additional discovery. The idea of bringing, or defending, a multi-party case with a large amount in dispute and only being allotted 30 hours of deposition testimony would be unjustly beneficial to the party opposing additional discovery. Further, it presents a potential issue of forum shopping. In nearly every action that presents a large dollar amount in dispute, one of the parties will likely be benefitted by additional discovery. Thus, plaintiffs will seek to bring their action in federal court, or defendants will seek to remand the action to federal court. Thus, H&H proposes that a case claiming damages that fall within Tier 3 (i.e., $300,000 or more) be presumptively allowed the “extraordinary” discovery contemplated under the proposed rules.
If, under H&H’s proposal, the amount in dispute is greater than $300,000, or the parties have stipulated to extraordinary discovery procedures, then it is proposed that the parties be required to jointly create a discovery plan. The parties would have a duty to stipulate to a discovery plan that specifically identifies the scope of discovery to be sought. For example, with respect to electronically-stored information, search terms could be restricted to target specific individuals, issues, etc., and a customized search of a custodian’s database could be carried out based on the specific scope of the discovery plan as stipulated.
4. Although only indirectly related to the Committee’s proposed rules governing civil discovery, H&H also proposes that a complex, commercial litigation division be created in the state courts. Similar to the tax court structure currently in place, a complex, commercial litigation division would allow parties to file a case in a court specifically managed to accommodate the additional discovery needs for this type of litigation.
H&H appreciates the opportunity to respond to the Committee’s proposed rules, and welcomes any questions or requests seeking further elaboration of H&H’s concerns and proposals.
Sincerely,
Attorneys of Holland & Hart LLP

The proposed changes which drastically reduce the use of depositions, interrogatories, request for admissions and request for production of documents are in my opinion a giant step backwards, and an abandonment of years of the development of discovery and a bad idea.
Proposed Rule 26(a)(3)(B) limits on expert discovery make a legitimate challenges to unfounded or unsupported expert opinions much more difficult. The purpose of discovery is to learn the strengths and weaknesses of your case and the oppositions case. These rule changes don’t further these objectives.
I strongly oppose making a report or a deposition an “either or” situation. A retained expert should have to write out his opinions and also defend those opinions in a deposition. A report without a deposition allows for no testing of the opinions. A deposition without a report means that the deposition will be a blind fishing exposition. A thorough deposition of an expert witness is the most effective way of getting at the truth.
The advisory committee notes regarding expert disclosures and timing appear to presume that the only purpose for a deposition of an expert witness is to prevent deviation of the opinions of the expert at trial from the opinions that the expert might express in the deposition. I submit that there are numerous other reasons for the taking of the deposition of an expert witness. These include evaluation of the credibility of the expert witness, challenging the experts opinions, determining whether or not there are other opinions held or previously expressed that are inconsistent with the written opinion, getting accurate information on how to check out an expert witness. You need to know more than just what they are going to say.
Depositions do have value! Putting a witness under oath, (and producing the witness to be put under oath) does have a positive effect on an honest or even a marginally honest witness. The evasive expert (and there are many of them) sometimes requires a long deposition to pin down. If a four hour rule is adopted there were be more evasive expert witnesses.
(I would also like to note that I have found numerous violations of the provision of Rule 26(a)(3)(A)(A) regarding a list of all other cases in which the expert has testified as an expert at trial or deposition in the preceding four years. These lists are regularly so unspecific as to be totally unhelpful. “Plaintiffs case, Dallas, Texas, 2008,” tells you nothing of value that you can check out. Retained expert witnesses should be required to identify the case name, the court and the civil number at minimum. It would also be helpful to know the party for whom the witness testified and the attorneys on both sides of the case.)
Proposed Rule 26(c)(5) dramatically changes discovery in Utah and I oppose those changes.
The amount of discovery allowed in tier 1, tier 2 and tier 3 for depositions, interrogatories, request for production and request for admissions are shockingly small. For example, zero interrogatories in any case seems to be unreasonable. Ten and twenty interrogatories are also amazingly small. A multi million dollar case would be limited to twenty interrogatories. Request for admissions are a tool, which ought to be used for the purpose of narrowing the issues; are restricted to an amount as small as twenty in any case. Indeed all of the discovery procedures are tools. These proposed rules inhibit the lawyers inability to do their jobs.
The adoption of these limitations on depositions will, in my opinion, cause more cases to be forced in the direction of going to trial. Those trials will also be more like the old trials where inadequate information was obtained before trial. If the outcome is unpredictable, trial is more likely.
Witnesses are not always cooperative. Some witnesses will refuse to talk to a party or the party attorney. Depositions are often necessary in order to get the information from the reluctant witness. In addition, rules of confidentiality in doctor patient relationships require the deposition of treating physicians.
Rule 26(a)(3)(c)(i) provides for a very very short response time to designations of expert witnesses and I oppose them.
Practioner would be best advised not to ever go on vacation or go out of town for a week of discovery and or investigation. There are lawyers who will send notice or pleadings when they know you are out of town and on a Friday afternoon at 4:55 p.m. This 7 day response time and the 28 day deposition deadline do not recognize the realities of the practice of law. These timeframes do not allow sufficient time to consult with, retain, and educate legitimate experts.
Also, requiring the designation of an expert witness within 7 days of the closing of fact discovery fails to allow the expert witness to review discovery obtained at the end of the fact discovery period. Should it not be the case that a proposed expert examine the relevant materials obtained during discovery before arriving at his opinion?
It is notable and highly regrettable that the standards of “relevance” and “likelihood to lead to discovery of admissible evidence” are being abandoned by the advisory committee note in favor of speedy resolution. The Supreme Courts prior position always has been to advocate justice over speed. The judicial review of important legal and factual matters should not be superficial.
The currently existing Utah Rules of Civil Procedure have been developed over many many years by many Supreme Court Advisory Committees. Conformity with the Federal Rules of Procedure is often been a strong consideration. These proposed rules totally break from the Federal rules. In my experience, a sharp departure from the federal rules, such is now proposed, is unwarranted and ill-advised. Proposed amendments would tie the hands of effective litigators capable of using discovery to find facts that are not likely to be voluntary disclosed by the opposition.

I thank the committee for its work. Although in strong agreement with other comments regarding the difficulties resulting from proposed changes, may I take this opportunity to list some of my concerns?
1. Most of the proposed discovery changes are remedies in search of nonexistent problems. I have practiced almost exclusively civil tort litigation for 26 years. I, like most attorneys, have a very, very short list of attorneys with whom I have not readily and informally worked out discovery disagreements. For example, in 26 years I have needed to move the court for a Rule 16 scheduling order less than a dozen times. I have filed a motion objecting to discovery less than 10 times. I have filed a motion to dismiss for failure to prosecute less than 10 times. I have received such objections just as infrequently. I can not remember but a few times receiving a formal objection to discovery which required a hearing.
2. The cost of a standard set of interrogatories are not unreasonable or burdensome in any case. Even in cases where the claim is for less than $50,000, a paralegal can almost always meet with the client and compile answers within a relatively short period of time. These responses go a long way to reduce the need and/or time for depositions.
3. The tier system based on amount claimed lacks rational basis. These cases are important to the litigants. These cases belong to the litigants. A $50,000 tier case is more important to the average citizen as a $301,000 tier case is to a major corporation. This is particularly so in cases where reasonable insurance limits are less than the amount claimed. Additionally, claims for punitive damages, which by statute may not be covered by insurance, are important claims. Whether frivolous or not, these claims carry significant risks to defendants. Defense of these claims, therefore, require complete preparation. These claims cost nothing to allege but require significant discovery to defend.
4. It is unreasonable and unjust to strip a defendant from conducting all desired and relevant discovery which the trial court does not deem burdensome. The court already has the authority to limit unreasonable discovery on motion. In 26 years I can not remember a single time when a plaintiff’s attorney has made a motion to limit discovery as being unreasonable or over burdensome under the present rules.
4. The new rules require the trial court to direct mediation or other ADR process. Courts presently do not and should not have the power to direct arbitrations, etc. The parties have a constitutional right to jury trial.
5. It is unreasonable to require an attorney to provide a summary of expected fact witness testimony. The potential or prospective witness may not be cooperative with or available to the defendant. At the beginning of cases defendants usually do not know the identity or knowledge of these witnesses. It may be impossible to know the expected testimony even from cooperative witnesses well into the case. This requirement will dramatically increase the cost of litigation as counsel strives to locate and sufficiently interview all such witnesses.
6. In well over 95% of cases, plaintiffs’ attorneys are satisfied to receive the coverage limits rather than a copy of the insurance policy. The costs incurred in obtaining a copy of such a policy are not necessary in almost all cases.
7. A defendant, in a significant amount of cases, does not know (1) whether or not an expert is needed; (2) the type of expert which is needed; (3) the identity of the exact expert selected, or (4) the availability of an expert within seven days of completion of fact discovery. Nor does the defendant have a realistic opportunity to consult with an informed expert until after plaintiff provides their expert information. Plaintiffs, on the other hand, have two to four years to prepare their case and screen, select and consult with their experts before the case is filed. To require defendants to designate experts and provide expert disclosures within seven days of completion of fact discovery will require a defendant to select, retain, and put to work experts, which may never become necessary. This will require significant and needless expense in many cases.
8. In like fashion, seven days is far too short a time to evaluate the need to depose or obtain a report of an expert. It should also be remembered that presently a party, after receiving a report, is the party who pays for the deposition of the opposing expert. The deposing party pays the court reporter and the expert fees. Why disallow a party from conducting what it believes to be a needed deposition if that party is paying the costs?
9. 28 days to provide a report or take a deposition is a needless burden. Rarely does an active litigator have available dates within 28 days notice to consult with his own expert, prepare for the deposition and schedule the opposing expert’s deposition.
10. When an attorney opts for taking a deposition rather than receiving a report, the attorney is prevented from adequately preparing for that deposition. The time needed to meet with clients, retained experts and basic area of knowledge are all increased for a lawyer who has been forbidden a report prior to deposition. A standard disclosure is inadequate to remedy this. This will result in lower quality and longer depositions. The net savings here and elsewhere in the proposed changes are illusory.
Present discovery promotes realistic evaluation by plaintiffs and defendants. In summary, the proposed changes will increase litigation costs and lead to more cases going to trial. In short, these proposed changes open the door to foster ambush and enable meritless claims and defenses at trial. Thank you for your consideration.

Dear Committee:
The discovery rules of the Federal Rules of Civil Procedure, upon which Utah’s current rules are modeled, were specifically designed to foster settlement. According to recent studies demonstrating how few federal cases actually go to trial, it appears the rules have achieved that purpose. There is no reason to believe the rules have not had the same effect in the Utah state courts.
The proposed rules are designed to reverse this trend. There is, however, no evidence that more jury trials are a salutary development for an already overstretched judicial system. A decrease in the number of cases that settle and concomitant increase in the number of cases that go to trial will put additional strain on a state judicial system that is chronically underfunded and understaffed. It could in fact be more costly to clients in the long run, which begs the question, who are the new rules designed to benefit the most?
If the amendments to expert discovery are enacted, Rule 702 of the Utah Rules of Evidence, will be effectively abandoned. Rule 702 requires that proposed expert testimony satisfy certain requirements of reliability. Trial courts, to whom Rule 702 “assigns . . . a ‘gatekeeper’ responsibility to screen out unreliable expert testimony,” cannot be expected to make the necessary inquiry without the assistance of the adversary process. Utah R. Evid. 702 (advisory committee notes).
The parties, however, cannot assist the trial judge discharge its “gatekeeper” obligations under Rule 702 without the proper methods for discovering whether the “principles or methods underlying the testimony meet a threshold showing that they (i) are reliable, (ii) are based upon sufficient facts or data, and (iii) have been reliably applied to the facts of the case.” Utah R. Evid. 702(b).
The proposed amendments permit discovery only through an expert report or a four-hour (4-hour) deposition, but not both (as currently allowed). Rarely, if ever, do expert reports alone provide all of the information necessary to assess proposed expert testimony under Rule 702. Moreover, the proposed rule does not even require an expert report contain the information that Rule 702 requires: (1) the methods and principles upon which the witness’s testimony is based, (2) the facts and data upon which the witness has relied, and (3) the application of the methods and principles to the facts and data in the particular case.
Neither will a four-hour (4-hour) deposition provide a sufficient basis for the parties to explore for the trial court whether a witness’s testimony satisfies all of the reliability requirements imposed by Rule 702. A large portion of that time will be consumed merely attempting to identify the actual opinions the witness intends to offer at trial. If the witness intends to offer more than one opinion or if the opinion involves multiple parts, it is doubtful that the parties could properly explore each of the Rule 702 elements (methods and principles; facts and data; application to the case) in just four hours.
If Rule 702 is to have meaning and effect, the discovery necessary to properly apply the rule should not be so restrained as to render the required analysis impossible.
Furthermore, it appears that those with smaller cases believe the current rules are not adequate when smaller amounts are at stake. But, it should not be assumed that all state court cases are for small amounts. There are also cases that are for very large amounts for which diversity or subject matter does not put the matter into federal court. The proposed rules are completely inadequate to handle these types of cases (i.e., numerous parties, numerous issues, complicated issues, large dollars).
Because there is already a trend in the proposed rules to recognize a need to “tier” the rules’ applicability to certain sizes of cases, it would be preferable if the current rules of civil procedure remained in place for cases in which the dollar size is over $500,000.00, which could be referred to as Tier 4. Therefore, Tier 3 would only refer to cases of $300,000.00 to $500,000.00.

To the Committee:
The following comments are submitted on behalf of several members of my firm (including Roger P. Christensen, Dale J. Lambert, L. Rich Humpherys, William J. Hansen, Phillip S. Ferguson, Karra J. Porter, Rebecca L. Hill, Nathan D. Alder, Scott T. Evans, George W. Burbidge, Scot A. Boyd, Sarah E. Spencer, Alain C. Balmanno, and Tyler V. Snow).
Like others, we recognize that the Committee has devoted substantial efforts to a worthy goal, i.e., reducing the length and cost of litigation. In that regard, some changes are welcome. For example, it makes sense to eliminate disputes by recognizing (some) attorney-expert communications as privileged. Other proposals, however, seem likely to increase cost and delay, increase motion practice, reduce civility, and/or create unfairness to one or both sides:
Rule 1 retroactive application: Application to pending cases seems unworkable and prejudicial. Trial courts will be deluged with motions for exemption, as most of us have handled our existing cases based upon the existing rules.
Rule 8 statement of legal theory: The level of specificity in pleading legal theories is unclear. For example, may a party plead negligence generally, or does she have to specify a Restatement provision?
Rules 8 and 26 tiers: As others have remarked, the proposed tiers are problematic. Is the tier a cap? The parties are limited in preparing a defense (to a claim or counterclaim) based upon the tier selected, which raises due process concerns if the claimant is free to seek more at trial. If it is a cap, some claimants will automatically choose tier 3 to avoid that limitation. And is a jury prohibited from awarding more, even if the claimant does not request it?
The lack of interrogatories in tier 1 cases is potentially unfair to both parties. It may force the taking of otherwise unneeded depositions, and deponents often cannot meaningfully recall medical information. In other states, court-approved interrogatories are authorized in specific types of cases (e.g., auto accidents). Or initial disclosures could include all medical providers, not just those supportive of the party’s claim. Or perhaps allow 10 interrogatories.
Limiting discovery by side is (1) problematic in cases in which co-parties have conflicts, or claims against each other; (2) prejudicial to parties added to the case after some of the discovery limitations have been eaten up.
Rule 26(a)(1) summary of testimony: The requirement that initial disclosures include a summary of expected testimony (1) is unfair to defendants, who do not have the same time to put their case together as plaintiffs, (2) is unfair to plaintiffs who may not have access to some witnesses (e.g., treating doctors who won’t meet with patients’ attorneys, defendant’s employee-witnesses); (3) increases cost by forcing early and potentially unnecessary interviews of all persons with potential knowledge, and (4) infringes upon attorney work product. Are witness statements now presumptively subject to production, whether in a dispute about adequacy of the summary or otherwise?
Rule 26(a)(3) experts: The proposed changes regarding expert reports/depositions will increase cost. If an expert is limited to a report, (1) counsel and expert will have to expend more effort on the report because it cannot be fleshed out through a deposition; (2) parties will be hindered in evaluating a case because the strength of the expert’s opinions cannot be tested until trial or a possible Rimmasch-type hearing. If the expert is deposed with no report, (1) the attorney will be taking a blind deposition, and (2) may be forced to pay his own expert to attend the deposition for assistance.
We agree that expert cost is a growing problem, but perhaps it might be better addressed through greater enforcement of existing rules. Some trial courts do not strenuously examine the need for or qualifications/methodology of experts, i.e., to truly act as a gatekeeper. Also, although existing rules contemplate “reasonable” expert fees, expert rates are skyrocketing, and often comprise (by far) a client’s biggest expense in a case.

Dear Members of the Civil Rules Committee:
First, I would like to thank you for your service on this committee and for undertaking this unenviable task. I know that you have received a number of comments and concerns with regard to the proposed amendments and I would like to echo a number of these sentiments. Also, I am writing this comment individually, but I have compiled a number of these concerns from the other attorneys at Clyde Snow. Thus, while this is not an official comment from the firm, it does reflect a number of opinions.
Initially, I would like to address the efforts to increase disclosure and strengthen the pleading requirements. This is a laudable goal, however, the standards are too restrictive and likely hold parties to unrealistic standards. This comment refers specifically to the requirement that parties summarize witness testimony and provide an accurate accounting of damages. These amendments require parties to disclose information that is often unknown, or unknowable, at this stage in the proceedings. For example, damages are often calculated following the completion of expert reports. Accordingly, it is unrealistic to expect parties to be able to disclose this information, or the basis for an estimate, at the initial disclosure phase. Therefore, the prudence of this amendment is called into question.
Secondly, the proportionality standard espoused by the Committee is similarly unworkable. Specifically, the restrictions imposed by the tiered discovery are overly restrictive and generally lacking in support. The amount in controversy rarely dictates the complexity of the case. Cases that have less than $50,000 at issue are frequently just as complicated, if not more so, than cases for larger amounts. The seemingly arbitrary lines drawn by the committee are not accurately justified with regard to the limitations imposed by the tiered approach. Thus, it is difficult to support these amendments without some supporting evidence that justifies the lines that have been drawn.
Further the proportionality standard, while admirable, will likely lead to a busy motion practice of challenging the proportionality of requested discovery. For example, every time a motion is filed to expand “standard discovery,” which I expect to happen quite often, a motion questioning the proportionality of the request will summarily oppose it. As this will ultimately be a fact intensive inquiry, it must surely be resolved at a hearing.
The amendments note that the “standard discovery” period will not be tolled while a motion to compel or a motion for expanded discovery is resolved. However, the practical result is that following the affirmative resolution of such a motion, the discovery period will be necessarily be extended to allow the party to complete discovery. Accordingly, the anticipated motion practice will likely defeat the ambitious timeline established by the tiered approach.
Similarly the attempt made by the Committee to deal with the costs of expert discovery fall short of the desired effect. I cannot foresee any situation in which a party would elect to depose an expert in lieu of receiving an expert report. Therefore, experts will be expected to produce substantive written reports within 28 days of the opposing parties election. Frequently, this will not allow sufficient time for a responding party’s expert to conduct the necessary research (if needed) or collect the necessary data to accurately respond in its own written report.
These critiques highlight the major concerns I have identified with the proposed amendments. However, there are a number of minor changes and alterations that have been made which also appear problematic. Further, these changes were not well publicized and our firm received late notice of the nature and extent of these changes. Accordingly, we were unable to coordinate a more thorough response and critique of these amendments.
With the foregoing in mind, I am unable to support these proposed changes and would encourage the committee to consider another round of revisions.
Sincerely,
Jon Clyde, Clyde Snow & Sessions, P.C.