Posted: February 5, 2021
Rules of Civil Procedure – Comment Period Closed March 22, 2021
DISCLOSURE AND DISCOVERY AMENDMENTS
URCP026. General provisions governing disclosure and discovery. Amend. The proposed amendments to Rule 26 extend several discovery timelines and clarify multiple provisions. The amendments also include the language currently proposed in SJR004 (2021), which addresses a party’s duty to pay an expert witness’s hourly fee for attendance at a deposition (lines 113-114).
- make case names more neutral and less antagonistic;
- shorten the presumptive discovery period for domestic cases;
- implement the case management recommendations of the “Report and Recommendations to the Standing Committee on Children and Family Law;” and
- address issues raised in a recent legislative audit.
URCP010. Form of pleadings and other papers. Amend.
URCP012. Defenses and objections. Amend.
URCP026. General provisions governing disclosure and discovery. Amend.
URCP026.01. Disclosure and discovery in domestic relations actions. Amend.
URCP100A. Case Management of Domestic Relations Actions. NEW.
URCP104. Divorce decree upon affidavit. Amend.
URCP106. Modification of final domestic relations order. Amend.
The Rule 10(a)(2)(B) proposed caption changes for domestic relations cases are long overdue. Thanks to whoever is finally proposing them. I respond daily to emails from the many thousands of people using OCAP and among those emails are ones asking why one of them must be designated petitioner and the other respondent. Even worse is the feeling that it’s one of them versus the other. They take “Jane Doe, Petitioner v. John Doe, Respondent” to mean something other than one person is filing and the other responding. For them, it means one person is at fault and the other is not, or one person is breaking up the marriage and the other is not, or one person is bad and the other is not, things like that. By and large, they want equality in the entire process, beginning with the caption of their documents. The proposed language should resolve their concerns nicely and I believe will help reduce animosity. For OCAP it will mean reviewing every screen in each of the programs impacted by the change, and then every document generated in each program and switching the words Petitioner and Respondent for the names of the parties. The changes will not only be in the captions, but throughout the entire content of each document as well, which will be a lot of work. But OCAP has been moving in the direction of names instead of titles for years. Implementation of this rule will be a good reason to complete the process.
I am old enough to remember case management conferences (attorney only) and orders. That process worked well and the addition of a mediator can simply help that old practice. I’m not sure why it was abandoned, but the return is welcome. Proposed new Rule 100A addresses a need that old case management conferences and orders served.The addition of tracks is also well taken.
Now the but, I would suggest that the Rule 26.1 requirement that financial declarations be filed within 14 days by both parties does not account for Track 2 cases and the conferences associated with them. I see an opportunity for abuse if non-disclosure within the 14 days acts as a bar to the future introduction of evidence based on non-disclosure under Rule 26(d4).
Excellent changes to Rule 26, particularly in regards to scheduling of expert discovery and clarifying the scope of material that must be disclosed regarding what the expert relied upon. I also appreciate the explicit statement that a rebuttal expert may not be used in a party’s case in chief. I have seen a few times where a party tried to slip in a “forgotten” expert by designating them as a rebuttal expert.
I’m concerned about the proposed changes to Rule 26 where the proposed subsection (a)(5)(B) requires that pretrial disclosures of deposition transcripts under (a)(5)(A)(ii) have to be be filed with court. This potentially involves an invasion of privacy for any party whose physical or mental condition or whose criminal background is discussed in the deposition. In most personal injury cases, the court file is public and anyone has access to it. I don’t believe that deposition transcripts should be filed with court as routine pre-trial disclosures where anyone can read the depositions. A doctor’s deposition may contain private and personal details about a party which then become public. This has a chilling effect on a plaintiff’s willingness to bring a case to court and inadvertently punishes the party by making his or her personal details public through a deposition filed with court.
I agree completely
Thank you for clarifying, what has long been industry standard, that the party requesting a “non-retained” expert’s deposition must pay the reasonable hourly fee for that expert. This is consistent with the FRCP.
It is only right to require the party who is requesting a “non-retained” expert’s time to give a deposition, to pay the reasonable hourly fee of that “non-retained” expert. It would be unfair to allow a party to demand multiple depositions of another party’s “non-retained” experts and either not pay the reasonable hourly fee of that “non-retained” expert OR attempt to force the costs associated therewith upon the non-requesting party.
This clarification to URCP 26 will do away with a lot of unnecessary motions and URCP 37 Statement of Discovery Issues.
John Lowrance has articulated well why the rule change is necessary. Fairness is at the heart of the issue. If you want to depose a non-retained expert then you should have to pay for that person’s time at a reasonable rate. This will also clarify how this issue should be handled in the courts and avoid confusion with the judiciary, which will further judicial economy.
Reduce the days in which to complete discovery to 90 days in a domestic relations action?! We’re lucky just to get a hearing on temporary orders within 90 days these days. This change would eliminate the chance of avoiding the cost of discovery in the event a temporary order is needed but settlement could be reached soon thereafter because you’d have to issue discovery requests as soon as possible. I’m not even going to try to address the complications that a custody evaluation would pose.
My comment is on the timing-for-expert-discovery provision in rule 26(a)(4)(C).
I like the change to the triggering event for non-burden expert disclosures. Instead of working off of the date of election, we work off of to the date of disclosure. This is great because it clarifies when a defendant should disclose an expert even when a plaintiff has not. Please keep it.
I don’t like the provision saying that an expert disclosed only in rebuttal cannot be used in the case in chief. This gets into the order of the presentation of evidence at trial when rule 26 should be dealing with the timing of disclosures and discovery. For expert discovery, we have a burden disclosure, response, and rebuttal–reminiscent of a trial–but it shouldn’t be treated as establishing the trial’s structure. The point of rule 26 is to flesh out the expert issues in a fair way. Once the expert issues are fleshed out pre-trial, I can see no reason why we should create an artificial structure on the order in which the expert testimony will be presented at trial. The parties have been fully notified of the proposed expert testimony, and it should be presented in an order that makes the most sense. It’s strange to have everyone pretend like we don’t know what the responsive expert is going to say and require an otherwise unnecessary “rebuttal” phase of trial.
The problem is exacerbated when you consider that in many civil cases there’s a mix among the parties of who has the burden on any given issue. The reality is that both sides are making burden, responsive, and rebuttal disclosures of various experts on various topics. Sometimes on the same topics because it’s unclear who has the burden. This mess shouldn’t determine the structure of the trial.
To be clear, in my view, the way you deal with an improper rebuttal disclosure is to exclude it or to give the other side an opportunity to respond. Is it testimony that could have and reasonable should have been disclosed in the initial round of expert disclosures? If so, it’s not proper rebuttal testimony and should be dealt with appropriately under the circumstances of the case.
URCP010. Form of pleadings and other papers: not a necessary change, but not a burdensome of otherwise harmful change.
URCP012. Defenses and objections: not a necessary change, but not a burdensome of otherwise harmful change.
URCP026. General provisions governing disclosure and discovery: is the proposed amendment of rule 26 intended to permit a strict and exclusive 4-hour limit on any and all depositions, including the deposition of the expert witness? Or is the proposed amendment of rule 26 intended to permit a 4-hour limit on the deposition of each expert witness AND limit all other deposition hours regarding any other witnesses?
URCP026.01. Disclosure and discovery in domestic relations actions: This proposed amendment appears to me to be a step in the right direction when it comes to reducing the time and money spent needlessly on a domestic relations action.
URCP100A. Case Management of Domestic Relations Actions:
– If proposed rule 100A is created, will Utah Code § 30-3-39 need to be amended as well to provide that mediation is waived per URCP rule 100A(1)?
– shouldn’t there be a way to object to an order placing a case into a track to which a party may object? For example, if the court certifies a complex case a “Track 1 Standard Track” case when it’s really a “Track 2 Complex Track” or vice versa?
– it appears that requiring the parties to discuss whether there will need to be a hearing for any motions for temporary orders will have the unintended effect of causing motions for temporary orders to skyrocket, i.e., because the rule provides for discussing whether there will need to be a motion for temporary orders hearing that will have the effect of spurring parties to file opposing motions for temporary orders.
– I’ll believe this will be followed consistently by the court when I see it followed consistently by the court.
URCP104. Divorce decree upon affidavit: not a necessary change, but not a burdensome of otherwise harmful change.
URCP106. Modification of final domestic relations order: not a necessary change, but not a burdensome of otherwise harmful change.
URCP100A. IS A BAD PROPOSED RULE
The “Report and Recommendations to the Standing Committee on Children and Family Law” was presented in June of 2017. The Report came by way of research and study. The domestic case management “track system” was implemented as a pilot program in the 4th and 7th judicial districts. Then approximately a year and a half ago the 3rd judicial district also started following the case management track system.
The Court’s own statistics show that on average, 80% of domestic cases are resolved within a year and 15% are resolved within a year and a half. Only 5% of cases are taking longer than 18 months.
To date, there has not been any follow-up or similar research and study to determine if the case management system as proposed and implemented has actually accomplished what its drafters believed it would. In fact, the only real data that could be gleaned is that on average in the 3rd district the life span of a domestic case with or without a custody evaluation has only been shortened by 30 days. Why should we change the rules without research and study to determine if the pilot program actually worked. Just because back in 2017 the judicial council approved the pilot program, doesn’t mean that it still should. Relying on old data is unhelpful and unethical.
It is clear that all the hype about cases taking too long to complete (see the report) was really a distraction from what the drafters really wanted to do which was to take away a party and/or their counsel’s agency and ability to prosecute their case as the individual needs demanded. Instead of an attorney or party driving their own case, the drafters want the court to babysit every litigant that comes before the court. Parties should have the option to not have to follow a track but proceed in a manner which best fits their respective situation and needs.
This proposed rule is a solution to a problem that is non-existent. If a party, attorney, commissioner, or judge believes a case is taking too long, then Rule 16 already allows for a status/pretrial hearing at any time.
There is an additional argument that the courts should better provide help for the self-represented. And yes, while the Courts should provide aid to those self-represented litigants that are unable to afford legal counsel, the LSC Survey relied upon by the The Utah Workgroup on Regulatory Reform clearly stated that self-represented parties were overwhelmingly self-represented by choice, not for lack of funds. If a litigant chooses to be self-represented that choice has consequences, many of which can be mitigated by a Rule 16 status conference after some time to allow the parties to try to work out the various issues.
In reality, whether there are self-represented parties or attorneys involved, the realities of life need to be felt/experienced and there are many times when a case needs to simmer on the stove. The parties and the children need to have a chance to start living a new normal before they decide if they need to have a custody evaluation or argue about parent-time issues. That new normal begins after an agreement by the parties or a temporary orders hearing. Presently the time it takes a case to get to a case management “track” hearing or a temporary order hearing are virtually identical, about 5-7 weeks. Hire a few more commissioners and staff and the time would be reduced.
Another big problem with this proposed rule is the requirement that the parties “must” identify at the outset if they need or will need a temporary orders hearing. If they don’t know and don’t say anything or with optimism believe the other parent’s representations and say they don’t need one, then they may be precluded from asking for one later. This goes against every “best interest of the child” tenet that family law should espouse.
Many times in domestic cases, one party has been planning on filing for divorce for some time and while the other party wouldn’t disagree that the couple is having problems, when they are served with the complaint their whole world comes crashing down on them. It makes little sense to expect the surprised party to be content with immediately being pushed down a route toward settlement when nothing is certain and the parties don’t know how their actions will actually affect the parties’ children.
I should say however, that while I don’t like or necessarily agree with the track system noting that it will actually push more parties to fight at trial because they have been rushed to it without time to live a new norm, perhaps this proposed rule could be modified to allow for a 6 month time period to allow parties the opportunity to get their cases done on their own terms in a collaborative sense. Then at the 6 month mark, if the case is still outstanding there could be the hearing with the judge who would then assign the case to a track to start the babysitting.
I agree with Commissioner Morgan’s comments. It feels like an effort to require the court to micro manage cases and attorneys. Sometimes delay results in good things, e.g., the parties decide to get back together; counseling may have a positive effect on one or both parties, or the kids. I also agree, however, that an occasional reminder from the court – a 6 month review could be a good thing for cases that are dragging.
I concur with everything Commissioner Morgan says. While well-intentioned, this is an example of a cure becoming worse than the disease.
URCP010
This amendment is unnecessary and potentially unhelpful. Instead of “in the matter of the marriage of” or “in the matter of the parentage of (child’s name)” Perhaps it should just be, “in the matter of (name 1) and (name 2)” The case number already should have a designation of DA, CS, or PA. Identifying individuals with open cases may be more difficult for the juvenile court, the public, etc.
I appreciate the hopefulness that led to this proposal, however I don’t believe in the slightest that changing the caption will somehow magically reduce the animosity or conflict between the parties. By the time a case gets filed, many Parties have likely already been using terms with each other that are much more offensive than Petitioner versus Respondent.
I again agree with Commissioner Morgan. Why are we spending time/resources to change status quo that has existed for decades. Seems to be a symptom of the new woke/snow flake generation.
I agree with Commissioner Morgan. I also have my own concerns about the unintended consequences of the proposed changes to Rule 10.
First, the rule applies to “domestic relations actions, as defined in Rule 26.1”. Rule 26.1 includes as “domestic relations actions” child support and modifications. A child support action may be initiated in its own right without being tied to a divorce action or a parentage case. As the rule is currently written it does not provide for a caption where the action is solely regarding child support.
Second, in order to represent my client’s interests, my office must frequently search in Courts Xchange to see if an action already exists that may require intervention. If there is no existing action, my client may proceed administratively. However, in order to determine whether to proceed judicially or administratively there must be an avenue to see if a case exists. To locate judicial actions my office must search by the parties’ (parent, alleged parent) names. My understanding is that the search is driven by the names in the caption. If the parties’ names are no longer located in the caption it will be impossible to conduct the necessary searches.
Third, many families have children with the same initials. If only the child’s initials are included in the caption it will cause confusion regarding which children are involved in the pending case. In the juvenile court, the cases also contain birth dates. I know that this may run afoul of the privacy protections in the district court but maybe it could at least contain month and year of birth.
In my opinion, if changes to the captions are being made there should be an option that captures child support cases and all captions should contain the parties’ names so that cases may be located by those that have the proper access. If the intent of the caption change is to make the action appear less adversarial, the parties’ names may still be included while removing the designation of “petitioner” or “respondent”. Some examples of how that may be accomplished are:
Rule 10(2)(B)(i) – Divorce, annulment, etc. – “In the matter of the marriage of [Party A and Party B].”
Rule 10(2)(B)(ii) – Parentage – “In the matter of the parentage of [Child(ren)’s Initial(s) – month and year of birth], a child. [Party A and Party B], Interested Parties.”
Rule 10(2)(B)(iii) – Custody/parent-time/child support – “In the matter of [Child(ren)’s Initial(s) – month and year of birth], a child. [Party A and Party B], Interested Parties.”
There may be other “interested parties” that may join or intervene but those situations don’t need to be captured in the mandatory caption language. They would still be adequately provided for by intervention or joinder.
Finally, the Utah Code has several references to “petitioner” and “respondent”. Since this proposed change eliminates those designations, what significance do those statutory provisions have? Is consideration being given as to how to amend those designations in the various statutes? Also, there are numerous references to “petitioner” and “respondent” on the court’s website when searching for information on divorce and parentage. Are there plans to change all those references as well?
Thank you for your time and consideration of my concerns.
Regarding the below proposed changes to the Rules, most of them I am either neutral (or at least can live with them) or I support them.
I have a big problem with the proposed change to Rule 26(c) – only 90 days to to complete fact discovery, and ESPECIALLY only 4 hours for deposition (shortening it from 15).
Many of my cases involve many complex issues, that require at least a 7 hour deposition of the opposing side, and sometimes 1 or 2 additional depositions. (e.g., self-employment/business issues, hidden incomes/assets, alienation/interference issues, custody factors, relocation factors, etc. – sometimes all in the same case).
This takes time to get to the bottom to. 90 days is insufficient. And ESPECIALLY only 4 hours of deposition is just plain inadequate. It gives short-shrift to domestic litigations, giving them sort of “less due process” than, say, a contract or real property case. I realize kids need resolution as quickly as reasonably possible, and I also realize courts can get sick of domestic cases. But these changed would often prevent a domestic party from being able to adequately discovery and develop the evidence they will need. Especially when children’s best interests are at issue.
Moreover, these changes will give a significant advantage to whichever domestic litigant who enjoys the greatest advantages in the beginning of the case (e.g., the high-earning spouse who has separated from the disabled spouse who cannot work; the alienating parent who has custody, etc.), with fewer opportunities for the disadvantaged party to develop the necessary evidence.
I think the current Rule (defaulting to Tier 2) is the appropriate balance.
As proposed, RCP 26(a)(5)(B) begins, “Disclosure required by paragraph (a)(5)(A) shall be served on the other parties at least 28 days before trial.” It then continues with a new sentence, “Disclosures required by paragraph (a)(5)(A)(i) and (a)(5)(A)(ii) shall also be filed.” The Rule does not state *when* the disclosures must be filed.
Must the disclosures also be filed 28 days before trial, as with the service deadline? Any time before trial? Whichever the case, we request that the Court state the filing deadline specifically.
This is from accountant Brad Townsend and myself: The advisory committee notes dictate that all materials relied upon and all computer models have to be produced with the expert designation, instead of with the expert report or deposition. That timeline doesn’t make sense, given that the final collection of materials relied upon and final computer models are usually not complete until the report is issued or the deposition is given. Having these items provided with the designation is putting the cart before the horse.