Rules of Civil Procedure – Comment period closed February 11, 2021

The proposed changes to Rule 6(c) says that when “service is made by mail under Rule 5(b)(3)(C), 7 days are added…”. The Subsection 5(b)(3)(C) lists service by mail, personal delivery, substitute service and other methods agreed to by the parties. Does the 7 day extension apply to personal service and substitute service? If the 7 days is only meant to apply to mailing, would it be better to specifically refer to the mailing subsection?

This is the proposed language I would suggest – “service is made by mail under Rule 5(b)(3)(C)(i), 7 days are added…”. That way it’s clear that the 7 days applies to mailing but not the other methods of service (personal, substitute or as agreed).

Dear Rules Committee:
Thank you for continuing to modernize civil practice through these amendments. I believe the proposed changes will assist practitioners and help to ensure the just, speedy, and inexpensive determination of civil actions.

The following are a few suggestions I have to improve the clarity and functioning of the proposed rules. (These suggestions and opinions expressed are my own and not those of my employer or any other person.)

* Rule 5 *
Rule 5(b)(3)(B) is written in the plural (“for papers not electronically served…”). The rest of the rule follows Bryan Garner’s suggestion to draft in the singular unless the “sense is undeniably plural” (Garner, Guidelines for Drafting and Editing Court Rules R.21 at 3 (5th Printing 2007).) Therefore, I suggest the rule be rewritten as :
(B) for a paper not electronically served under paragraph (b)(3)(A), emailing it to ….

* Rule 6 *
I appreciate that perhaps U.S. Mail takes longer than it did when the rule was drafted. However, I’m concerned that giving seven days’ extension for mailing is simply too long. Many deadlines in the rules are seven days or less. This extension by mail would effectively double that time. (Of course, if the mail does take longer than usual, a party may always seek an extension of time to act. Slow mail should constitute good cause to do so.) Accordingly, if the Committee and the Court believes an extension is warranted, I suggest a shorter extension of the mail deadline– at most 4 or 5 days.

Second, a number of practitioners still serve documents via e-mail and U.S. mail, in a belt-and-suspenders practice to ensure the other party received the document. The rule as currently written does not specify whether the additional days are automatically applied if someone serves by mail, or if the document is only served by mail. A receiving party should not get the benefit of all of the additional time for mail service if it had already received the document by email.

Accordingly, I suggest the proposed Rule 6(c) be modified as follows
“… service is made exclusively by mail under Rule 5(b)(3)(C), 5 days are added after the period would otherwise expire….”

* Rule 7 *
Consistent with my comment above, and to maintain consistency with the rest of the rule, the proposed sentence in Rule 7(h) should be rewritten in the singular, rather than plural:
“A motion hearing may be held remotely….”

* Rule 37 *
The reference to Rule 43(b) safeguards seems unnecessary here, as discovery hearings are rarely evidentiary, requiring private room consultations, a court-provided record of the testimony, and specialized oath. This cross-reference also seems superfluous. In the circumstance where there might be evidence taken during a telephone conference, Rule 43(b) should apply regardless. Finally, The phraseology also appears to include two “hidden” requirements in the rule — a preference for remote hearings and a requirement of safeguard. Because the previous rule already appeared to require a telephonic hearing, the expression of a preference seems out of place. I would therefore suggest that 37(a)(6)(B) be rewritten as follows:

(B) conduct a remote hearing; or

* Rule 43 *
I appreciate the committee’s work to provide easier hearing access through remote means while ensuring the validity of the process. I generally support the rule, but have a few suggestions to the rule’s language and structure. I begin with my suggestions and conclude with a draft of proposed Rule 43(a) and (b). (I omit (c).)

In (a): It appears that the Committee has abandoned the use of the word “shall” in its rules, consistent with Bryan Garner’s suggestion, to replace it with a “more appropriate term” (Garner R4.2.B, at 29). Because you are amending Rule 43(a), I would replace “shall” with “must”. The rule is also written in plural rather than singular. The rule should be written (and may also be rewritten to be more consistent with the Federal Rule equivalent language).

Also in (a): There are many conditions buried within the second sentence of (a). I suggest breaking out the good cause and appropriate safeguards requirement into a second sentence for clarity.

Also in (a): I believe that rather than “practical” (meaning, useful), the committee probably intends the word “practicable” (meaning doable or feasible).

Throughout: The rule uses two different adjectives to describe the safeguards enumerated in subsection (b)–“appropriate” and “necessary”– as well as referring to them as “remote testimony safeguards” with no characterizing adjective. To avoid confusion, I would avoid the adjective in all circumstances except in (b)(4) “necessary to maintain the integrity…”

Subsection (b): repeated references to “court-provided” or “party-provided” appear redundant in light of the requirement that the hearing may not proceed unless safeguards are provided “by the court or by the parties.” I would suggest removing them.

Subsection (b)(1): This subsection includes four different requirements rolled into one subsection. And of those four requirements, there are two separate classes of requirements — one related to a recording, and three related to the notice. I believe these requirements should be separated into subparts to avoid hidden requirements. (Garner R.3.3, at 21.)

Subsection (b)(3): The rule is ambiguous about whether the “confidentially” requirement applies to the “sharing” clause or not. It looks, again, as if there are two separate requirements bunched into one rule without subparts. I would suggest making them two subparts. Additionally, “other things” is strange phraseology. At its most literal, the rule would require some digital technology to be able to share physical evidence. I don’t think that’s the requirement of the rule. I think “electronic files” would probably suffice to cover all the circumstances contemplated by the drafters.

Subsection (b): This contains a “dangling section” which Garner suggests is inappropriate. (Garner R. 3.3.E at 24.) The dangling section appears to be the main requirement of the rule, which should be at the beginning of the subsection before providing the detailed list of the requirements.

Subsection (c): I am unaware of the inclusion of any oath in a rule of civil procedure. I would be concerned that this oath might conflict with other portions of federal or Utah law. I am also concerned of the subsequent use and validity of testimony if the oath is not provided, even when there was no concern over the testimony’s veracity. As such, I suggest placing a more general requirement of assurance into subsection (b), rather than a specifically written oath, in subsection (c). Not only would it streamline the rule, it would ensure that if a party did not object to a witness being specifically instructed, or promising, not to communicate with anyone else, then the objection is waived and the testimony can be utilized later.

Suggested Rule 43 language
(a) Form. At trial and during an evidentiary hearing, the witnesses’ testimony must be taken in open court unless a otherwise provided by these rules, the Utah Rules of Evidence, or a statute of this state. In a civil proceeding, the court may, upon request or on its own order, permit remote testimony in open court. Remote testimony may be permitted on a showing of good cause and with the safeguards described in subsection (b). Remote testimony will be presented via videoconference if reasonably practicable, or if not, via telephone or assistive device.
(b) Remote testimony safeguards. The court must ensure that remote testimony safeguards are provided, by the court or by the parties before conducting the hearing. An objection to a lack of safeguards is waived unless timely made. The safeguards include:
(1) a notice of (i) the date, time, and method of transmission; (ii) instructions for participation, and (iii) contact information for technical assistance;
(2) a verbatim record of the testimony;
(3) upon request to the court, access to the necessary technology and resources to participate, including an interpreter, telephone, or assistive device;
(4) a means for a party and the party’s counsel to communicate confidentially;
(5) a means for the party and the party’s counsel to share electronic files among remote participants;
(6) assurances, including a witness’s oath, that any witnesses giving testimony will not communicate with or receive communications from any person during the witness’s testimony, unless authorized by the court, and
(7) any other measures the court deems necessary to maintain the integrity of the proceedings.

Thank you for the opportunity to comment on these important changes to the rules.
Kyle Kaiser
Senior Trial Attorney, Litigation Division, Utah Attorney General’s Office

RE: URCP006. Time.

COMMENT:
The Utah Court Notices email that was sent out stated that “The proposed amendments to Rule 6(c) acknowledge the timing issues surrounding mail service by expanding the amount of time to act from 3 days to 7.”

This is not a very good explanation on why 3 days is not good enough. What “timing issues surround mail service” are being “acknowledged”? Three days covers a weekend and Monday. Without much more than the scant explanation, I cannot see how seven days is the correct number and honestly it adds too much time, especially when added to Rule 7’s 14-day response time. Moreover, said increase in time may unfairly place one party who has email (ex. the client who is represented by an attorney) at a disadvantage when the other side (ex. pro se party) does not have an email address.

I believe the changes to Rule 43 will severely impact an attorney’s and a judge’s ability to judge the credibility of a witness. It will further impair an attorney’s ability to assess whether a witness is being dishonest because the attorney will not be able to judge many visual cues that will be shrouded by the video and because there are many non-verbal clues that a witness is not being honest that are difficult to assess over video.. Further, there is no guarantee a witness is not being coached by someone just off camera. The process of cross examination is also slower via video and gives a witness more time to think and get the story straight. There is a dynamic that is built into the way court rooms are constructed that causes most people to be intimidated and may cause them to more likely be honest with the court. There is also some research that indicates it is easier to not be truthful over a remote connection rather than being there in person. I believe the change will negatively impact an attorney’s ability to represent his or her client.