Rules of Civil Procedure

I don’t think it is a good idea to allow people to serve by email without consent. I understand that we must agree to service by email through the electronic filing system, but I prefer to receive discovery materials and other documents through mail, unless I have consented to service by email.
With electronic filing, we are already bombarded with emails and it is too easy for an email to slip through the cracks unless I am expecting, and have agreed, to receive documents through email.
I believe the better rule is to still require consent to receive documents through email.

Some of the proposed changes to RULE 5 are scary at best, and should NOT be changed.
I am against the change in Rule 5 (b)(2)(A) (now Rule 5 [b][2]) that “a paper that is filed with the court must be served before or on the same day that it is filed”. This rule is too general and does not fit every type of situation that may occur. There are times when you cannot serve another party on the same day that you file the document with the Court. What then, what happens? For example, you could be e-filing the documents at 11:58 p.m., with the Court and then dropping the papers in the mail to the other party shortly thereafter at say 12:00 a.m., which would be the next day. As long as the attached certificate of service states the date of service then why do we need such a rule as to require they are filed and served the same day? As another example- it is extremely common for a party to file a motion for temp orders in a family law case at the time the complaint/Petition is filed with the Court, then obtain a hearing date from the Court for that motion. The motion and notice of hearing along with the Complaint/Petition are then all sent out for personal service upon the opposing party. This rule would prohibit such common and efficient practice, which does not make sense. It’s hard to see why this rule is being amended at all. Courts are not dumb. They have checks and procedures they follow to figure out if a paper was properly served and if enough time has been given before addressing it. Moreover, if there is a problem, the other party can simply object.
I am against the change in Rule 5 (b)(1)(A)(ii) which allows service upon a person without their consent by email if they have an electronic filing account. It is one thing to have your EFSP send/serve documents to an email address that you have given the EFSP and a completely different thing for an opposing party to send/serve you out of the blue documents directly via an email address, which is believed to be correct. The service of a document by email can only be safely accomplished through receiving the same from the EFSP or when permission is asked from and granted by the receiving party. There are several reasons why. (1) Often the email address that is given by the attorney to the EFSP is different than what is listed with the Bar or known by anyone else. This is because email addresses are subject to being compromised by SPAMMERS after time if the email address is generally given out and used by the public. Often people’s email accounts are compromised and all of the email addresses they have stored in their address books are then passed around and used obtained by SPAMMERS or worse virus. So at our office we find that the only way to to combat the spamming problem is to give our EFSP an email address that we do not disclose to anyone else and then every so often we have to change the email addresses we generally give out and use with the public. If someone does not have to ask for permission to serve a document to us via email then they might have an old address they are sending the documents to and we will miss the service (please note that “old” can mean as much as a millisecond). (2) There is no tracking method to determine if the person that was served by email was actually served by email unless the same is done through an EFSP. (3) If the person who is being served was not asked by the servicer if it is okay to be served by email, then that person who is being served would not be aware of such an attempt and would not be looking for the arrival of the email. Conversely, if the person being served was asked if it is okay to serve via email, then if the email does not come then that person has enough awareness of the situation to follow-up on it and ask for it to be resent. That is why the rule that permission be granted existed in the first place, as it provided the necessary checks to insure that service would be received. (4) Updating the email address with the Utah Bar is not an instantaneous event, and takes time (an attorney just the other day told me that he had been trying to get the Bar to update his email address for over 2 weeks now, when explaining to me why the old email address that I had sent an email to had come back to me as being undeliverable). So in the meantime service is going to an old email address, and not being reached by the person, and such could be very costly for the attorney. Even if a change with the bar was instantaneous, there could still be problems. For example, a person looks on the Bar’s webpage and sees an email address for an attorney. They then go and insert it into the paperwork they are working on. Meanwhile, unbeknownst to that person, the attorney goes to the Bar’s website, and changes his/her email address. The person serving then sends the email out. Service is not received, but yet the Rule would say it was “served”. Moreover, there is no way for anyone to know when the email address was changed… there is no tracking log, which also causes problems for everyone.
Bottom line here is that we are setting attorney’s up for potential malpractice and at the very least doing a disservice to the people we serve. Service of a document upon another party should be taken VERY, VERY SERIOUSLY and the method employed should have the HIGHEST assurances that it will be received by the intended party. Why would we ever change this or weaken it?
On another note, this change in the rule will place attorneys at a disadvantage to pro se litigants. The pro se person will always be able to serve the attorney via email because the attorney will have an e-filing account, and the attorney will never be able to serve the pro se litigant via email if they don’t agree to such. This is especially unfair in the area of discovery, where the documents can be voluminous and the cost to print can be high. The attorney will have to print the documents that are sent to him/her via email by the opposing party, at the attorney’s own cost, and the attorney will also have to print the documents that he or she will be sending out to the pro se person at the attorney’s own cost.
Rule 5 (b)(1)(B) removes the rule that service by electronic means is not effective if the party making service learns that the attempted service did not reach the person to be served.
WHY? In what circumstance would there ever be a good reason to ignore a return email stating the email was automatically denied by the email service for whatever reason (often for the reason that the email service automatically believed it was SPAM) or not delivered due to an error of some sort?
This is really a good rule to keep, and goes with the comments I wrote above.
Finally, I am against the removal of the ability to serve someone via fax if they agree to such (see Rule 5 [b][1][A][iii]). Why are we messing with this? Someone might not have or want service via email, but they have a fax and are willing to receive it by the same. Why are we taking away options here, especially one that, unlike email (as discussed above), at least has a verifiable confirmation that the document was sent and received by the person at that phone number, on the date and time indicated in the fax confirmation?

URCP 45(e)(5) should be modified to comport with the changes to URCP 37. The current language in 45(e)(5) refers to a “motion for protective order” and ought to be changed consistent with the language referencing a “Statement of Discovery Issues”.

How are we defining “conformed signature”? We need the definition or a reference.

Comments re Rule 37:
Line 37: Consider changing “the person from whom discovery is sought” to the more indefinite “any person from whom discovery is sought.” This language conforms to Federal Rule 26(c)(1).
Line 38: Consider replacing the word “regarding” to “resolving” as it better describes the purpose of the order.
Lines 39–44: the wording of the list needs to be altered to make the phrasing of each of the list items consistent. Also, line 41 may be misread to suggest that a court order is required to obtain a subpoena. Consider amending as follows:
(a)(1)(A) compelling disclosure under Rule 26;
(a)(1)(B) granting extraordinary discovery under Rule 26;
(a)(1)(C) compelling compliance with or quashing a subpoena under Rule 45;
(a)(1)(D) protecting a party from discovery; or
(a)(1)(E) compelling discovery from a party who fails to make full and complete discovery.
Lines 74–99: While paragraph (a)(7) claims to be about orders, the list provided is only about protective orders (except for (K), addressed below). As the authority to make any order resolving discovery is clearly implied in (a)(1), I think all that this paragraph needs to be is an illustrative list of protective orders. Also, the language of the protective order list is outdated; I suggest adopting the updated versions of (a)(7)(A)–(H) that are in Federal Rule 26(c)(1), and updating (I) and (J) to match. Specifically, I would recommend changing these lines as follows:
(a)(7) Protective orders. The court may, for good cause, enter an order to protect a party or person from annoyance, embarrassment, oppression, undue burden or expense, or to achieve proportionality under Rule 26(b)(2), including one or more of the following:
(a)(7)(A) forbidding the disclosure or discovery;
(a)(7)(B) specifying terms, including time and place, for the disclosure or discovery;
(a)(7)(C) prescribing a discovery method other than the one selected by the party seeking discovery;
(a)(7)(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
(a)(7)(E) designating the persons who may be present while the discovery is conducted;
(a)(7)(F) requiring that a deposition be sealed and opened only on court order;
(a)(7)(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way;
(a)(7)(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs;
(a)(7)(I) allowing a party to defer its answer to a question about a fact, the application of law to fact, or an opinion about either, until after designated discovery has been completed, a pretrial conference, or other later time; and
(a)(7)(J) allocating the costs, expenses, and attorney fees of discovery among the parties as justice requires.
Lines 105–112: Paragraph (a)(7) combines a list of protective orders with the provision for expenses and attorney fees. While these are all orders, all but one of them are a specific type of order, and the provision for expenses and attorney fees is likely to get lost or ignored as just another type of protective order. I would suggest moving it out into a paragraph (a)(#). Also, the word “costs” is confusing, as it usually refers to taxable costs under Rule 54(d). What I believe the drafters of the federal rule had in mind when they said “reasonable expenses, including attorney fees” was attorney fees and litigation expenses that are not normally taxable under 54(d). Third, the language of this provision only applies to a party paying another party’s expenses and fees—I see no good reason why non-parties should not be subject to this rule or be able to take advantage of it. Finally, the wording of this paragraph is awkward. Specifically, I would recommend changing these lines as follows:
(a)(#) Expenses and attorney fees. The court may order a party, person, or attorney to pay the reasonable expenses and attorney fees incurred by the other party or person on account of the statement of discovery issues if:
(a)(#)(A) the court rules against the party or person in deciding the statement of discovery issues, or the party or person provides the contested discovery or withdraws the contested discovery request after a statement of discovery issues is filed; and
(a)(#)(B) the court finds that the party, witness, or attorney did not act in good faith or asserted a position that was not substantially justified.
Line 114: replace “costs” with “expenses” for the reasons explained above.
Lines 127–138: this is a list of “appropriate sanctions for the failure to follow [the court’s] orders” and therefore is a list of nouns. This is supported by the fact that the main sentence that the list splinters off from already has a main verb, “may impose,” and so all other verbs must be in a non-finite form such as an infinitive, gerund, or participle. Therefore, the form of each item in the list should be in gerund (“[verb]+ing”) form, just as they are in Federal Rule 37(b)(2)(A).
Lines 139–145: This language is awkward and clunky. I would recommend adopting the wording of Federal Rule 37(c)(2), revised as follows:
If a party fails to admit what is requested under Rule 36 and [] the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses and attorney fees incurred in making that proof. The court must so order unless:
Lines 159–160: The phrase “filed a statement of discovery issues under paragraph (a)” is a little vague—consider replacing with “requested protection from discovery under subparagraph (a)(1)(D).”
Lines 183–184: The phrase “related to a nonparty” is vague—consider replacing with “brought by or against a nonparty”
Lines 185 & 189: replace “paragraph” with “subdivision” as per Garner, 3.2.
Line 187: italicize “see also”

First point, I attempted to type comments into the website box. While drafting it, webpage transferred back to rules page, all my comments simply disappeared, and I had to spend another 30 minutes to re-type it. Perhaps best to advise folks to draft longer comments in Word and then paste them in.
Multiple comments about Proposed Rule 37:
1. Is the Discovery Statement truly intended only for responding parties? The Proposed Rule 37(a)(1) states that “A party or the person FROM WHOM DISCOVERY IS SOUGHT may request ….” But what if the person “from whom discovery is sought” is the party engaging in improper conduct? What if the responding party is not providing responses, or gives incomplete or evasive responses, or gives disingenuous objections. Can the person who seeks the discovery file a discovery statement? If not, what is the requesting party’s recourse, a standard motion? If a requesting party can also use the Discovery Statement, revise the rule to so indicate.
2. Is the Discovery Statement an additional tool that can be used, or a mandatory initial mechanism to solve “any discovery dispute”? Proposed Rule 37(a)(1) states a party “may” request an order about “any discovery dispute”. But will this be enforced as the party “must” use this rule? I seem to recall that local rule version of this rule made it a mandatory pre-requisite before another discovery motion could be filed.
3. Are Discovery Statements to be used for requesting extra discovery? Adv. Comm. Note 1 states that “Statements of discovery issues replace discovery motions.” Are they intended to replace all discovery motions or only certain enumerated motions? If this is only truly intended to replace a subset of discovery motions, please clarify.
4. In Proposed Rule 37(a)(3), the use of 7 days is a bit confusing. I’ve never seen a 7 day time limit. The only time I’ve seen deadlines using multiples of 7 is when it’s been more than 10 days, i.e., 14, 28, etc. With a 7 day deadline, presumably the intervening weekends and holidays are not counted per Rule 6(a). This would capture two weekends if the statement is filed on Thursday or Friday. Is that intended?
5. I’m confused by Proposed Rule 37(a)(4). It states that “unless other attachments are required by law, the party filing the statement must attach to the statement only a copy of the request for discovery or the response at issue.” But with this being a new procedure, where else in the law might other attachments be required? And if something else is required, then does that mean that filing the request or response is no longer required? I recommend: (a) make it explicit here what attachments are required; and (b) if a copy of the request or response is always required, include that in a separate sentence, not the conditional sentence that starts with an “unless.”
6. I’m confused by Proposed Rule 37(a)(7). Is this intended to be an exhaustive list of what the court can order in response to Discovery Statements, or is it just a suggestive list? If it is an exhaustive list, then what is to be understood by Proposed Rule 37(a)(1)’s statement that Discovery Statement can be used for “any discovery dispute”? Can it be used for a dispute that does not require one of the enumerated orders currently in (a)(7)(A)-(K)? If the proposed list is not exhaustive, then I recommend adding an “other appropriate matters” option as Proposed Rule 37 (a)(7)(L), i.e., something like Current Rule 16(a)(14). Failure to do so will result in confusion about the court’s authority to issue orders.
7. I’m confused by Proposed Rule 37(a)(8). I’m struggling to understand when costs or fees might be requested in an Discovery Statement unless it is for the type of sanctionable conduct specified in Proposed Rule 37(b)-(e). Can you clarify this in the advisory committee notes?