Posted: December 17, 2024
Rules of Civil Procedure – Comment Period Closes January 31, 2025
URCP007. Pleadings allowed; motions, memoranda, hearings, orders. AMEND. Proposed amendments to (b)(4) regarding orders related to subpoenas under rule 45, and adding motions that may be acted upon without waiting for a response under (l).
URCP030. Depositions upon oral questions. AMEND. Proposed amendment to subparagraph (b)(6) to add clarity regarding objections to a subpoena, and amendments to conform with the style guide for the rules.
URCP037. Statement of discovery issues; Sanctions; Failure to admit, to attend deposition or to preserve evidence. AMEND. Proposed amendments to add a reference to objections under rule 45(e)(4) to the statement of discovery issues in subparagraph (a)(2), as well as to subparagraph (a)(3), to add person subject to and non parties affected by subpoenas to the proposed order requirements found in (a)(5), to remove subparagraph (b)(6), and amendments to correct references to other rules as well as conform with the style guide for the rules.
URCP045. Subpoena. AMEND. Proposed amendments to add a written requirement to subparagraph (e)(4), to clarify the process found in subparagraph (e)(5) regarding responses to objections and compliance, and amendments to conform with the style guide for the rules.
I have comments regarding the proposed amendments to Rule 30 and Rule 37.
First, under the proposed amended Rule 30(b)(6)(C), it provides that “The deposition may proceed only on the matters to which there as been no objection”. This should be changed to “The deposition may proceed only on the matters to which there as been no Statement of Discovery Issues filed by an objecting party under Rule 37” This way, the deposition seeking answers on a topic will proceed, unless a SDI process has been initiated by the objecting party, thereby placing the burden to delay or interrupt the requested topic of questioning on the objecting party – and not the deposing party.
This is far more appropriate and in line with the typical burden of a witness needing to make a meritorious objection or else needing to answer the question posed. As its currently drafted, the burden is improperly put on the deposing party who is handcuffed from continuing the deposition merely by the witness making an objection, whether its with or without merit, until the deposing party goes to court and gets an order allowing that category to be asked. This burden is backwards of how it should be. Don’t require the deposing party go get a court order to allow questions to be asked. Instead, you need to require the objecting party to go file for a protective order under a Rule 37 process, or else answer the questions to be posed. This forces the objecting party to justify their objections to Rule 30(b)(6) topics.
Second, under the proposed amendments to Rule 37(b)(6), it strikes the court’s discretion to treat a failure of a party to obey a discovery order as contempt of court. This should not occur. Disobedience with discovery orders is already problematic enough for plaintiff’s enforcement of orders. We want to deter disobedience, not promote it. We want to add teeth to violation of court orders, not remove teeth. Especially because certain violations of discovery orders can be incredibly prejudicial to the party entitled to such discovery.
Rule 45(e) should also be clarified to state that a party to the lawsuit not subjected to the subpoena also has the ability to object to a subpoena. There are domestic commissioners who are denying objections to subpoenas made from named parties because they are not subjected to the subpoena and are not “non-parties”
I think the language “or those objections are waived” should be deleted from Rule 30(b)(6)(B). If a party objects to the the 30(b)(6) notice in accordance with Rule 30(b)(6)(A) and the opposing party does not initiate a meet and confer about the objections, I think the assumption should be that the opposing party agrees with the objections, not that the party now waives the objections it timely made.
I help a lot of non-parties respond to document subpoenas, and I have some suggested adjustments related to non-parties:
Rule 37:
It’s good that the proposed amendment clarifies that the person subject to the subpoena has standing to respond to the statement of discovery issues. However, I don’t like the requirement that the person must have first “filed” a timely objection under Rule 45(e)(4). This language should be stricken for two reasons.
First, Rule 45(e)(4) doesn’t require a non-party to file its objection—the only requirement is that it raise its objection in writing and serve it on the subpoenaing party. There is good reason why the non-party should not be forced to file its objection in court, so Rule 45 should remain as is. Therefore, you should take out the “filed” language in Rule 37(a)(3).
Second, there are understandable reasons why a non-party may have failed to meet the subpoena deadline, so failure to timely object should not strip the non-party of standing to defend its actions before the court. In other words, the non-party should have standing to respond to a statement of discovery issues against it whether or not it timely served a written objection. Otherwise, a non-party would be treated more harshly than a litigating party who failed to timely respond to a discovery request, given that a non-responding party still has the ability to defend its actions by responding to a statement of discovery issues.
Rule 45:
I have encountered situations where the subpoenaed non-party is not raising an objection or making any privilege claim, but one of the litigating parties does raise those objections. In that situation, the subpoenaed non-party is placed in an awkward position wherein one party is demanding production and the other party is demanding the opposite. I would like language in the rule clarifying that, when any litigating party has objected to production, the subpoenaing party is not entitled to compliance by the non-party and must first resolve the other party’s objection.
I acknowledge that there is already language in Rule 45 protecting the non-party when a litigating party has requested a protective order. But this language is ambiguous and does not help the non-party much. If the other litigating party has raised privilege, but it hasn’t filed a statement of discovery issues, does the non-party subject to the subpoena merely ignore the privilege claim? If so, there must be language immunizing and protecting the non-party when it disregards the litigating party’s objections. The best approach would be to allow the non-party to sit tight until the objection is resolved between the litigants.