How the Proposed Changes to
the Montana Rules of Civil
Procedure Should Change You
Cynthia Ford, Professor
and Briana Schwandt, Student
University of Montana School of Law
M.R.Civ.P. Research Route
Read the rule, then
• Montana Commission/Committee Comment
• Montana Supreme Court cases
• Compare to Federal Rule
• Only if they are similar:
• Federal Commission Comments
• Federal Treatise
• Federal Cases
Outline of Practices to Change
• Serve Summons and Complaint together: 4d1
• Disability of Judges
• DEADLINES
– Time to serve process after filing original
complaint still 3 years: Rule 4t
– Time to substitute real for fictitious defendant still
3 years: Rule 4t
– Number of days to respond to service of process
by mail: now 21, not 20: Rule 4d3C
Outline of changes, cont’d
• A.G. gets 60, not 20 to intervene in cases
challenging the constitutionality of a state
statute: Rule 5.1(b)
• Privacy requirements now in M.R.Civ.P. 5.2,
consistent with the Supreme Court’s Rules for
Privacy and Public Access to Court Records
http://courts.mt.gov/crt_records/default.mcp
x and similar to F.R.Civ.P. 5.2
Outline of Changes cont’d
• Corporate parties required to file disclosure
identifying any corporation owning 10% or more
of its stock, or stating there is none: Rule 7.1
• Rule 11 significantly changed to conform to
federal version
– Danger here: no more “empty” Rule 12b6 motions to
dismiss to gain more time?!
• Rule 12b response deadlines changed from 20 to
21 days (for State, 42); pleadings after court rules
on Rule 12 motion due within 14 days
Outline of Changes, cont’d
• Defense of improper venue now treated like
other Rule 12b defenses: may raise by motion or
in answer, but will be waived if not made in the
earlier. No longer required to make a motion to
assert this defense.
• New procedure for claiming privilege or workproduct protection in discovery responses: Rule
26b7A
• New procedure for mistakenly produced
privileged or protected material: Rule 26B7B
Outline of Changes, cont’d
• New clarification of interstate depositions and
discovery, Rule 28c, drawn from the Uniform
Interstate Depositions and Discovery Act
Proposed Rule 4(d)(1)
(1)In General. The summons and complaint
must be served together. The plaintiff must
furnish the necessary copies to the person
who makes service.
How to comply: serve summons and complaint
together 
Present Rule 4D(1)(b)(i)
. . . If no acknowledgment of service under this
subdivision of this rule is received by the
sender within 20 days after the date of mailing
the summons and complaint, service of such
summons and complaint shall be made by one
of the persons mentioned in Rule 4D(1)(a) in
the manner prescribed by Rule 4D(2) and Rule
4D(3).
Proposed Rule 4(d)(3)(C)
. . . If no acknowledgment of service by mail is
received by the sender within 21 days after the
date of mailing, service of the summons and
complaint must be made in person.
How to comply: change your acknowledgment of
service form to reflect that defendant has 21 days;
change your calendar system to 21 days before
you can arrange personal service
Use Form 18-A of the Official Forms
Present Rule 4E
(1) A plaintiff shall have 3 years after filing a complaint to
have a summons issued and accomplish service.
(2) A plaintiff who names a fictitious defendant in the
complaint, pursuant to 25-5-103, MCA, may amend the
complaint to substitute a real defendant for the fictitious
defendant within 3 years of filing the original
complaint in the action. The 3 year time period set forth
in subparagraph (1) of this rule for issuance and
service begins to run, as to the newly identified
defendant, from the date of the filing of the original
complaint.
Proposed Rule 4(t)
(1) a plaintiff must accomplish service within two years after
filing a complaint. Absent an appearance by defendant(s),
the court, upon motion or its own initiative, must dismiss an
action without prejudice if the plaintiff fails to do so.
NOTE: MSC APPARENTLY REJECTED, STILL 3
(2) a plaintiff who names a fictitious defendant in the
complaint pursuant to 25-5-103, MCA, may, within two
years of filing the original complaint, amend the complaint
to substitute a real defendant for the fictitious defendant.
The two year time period set forth in Rule (t)(1) begins to
run as to the newly identified defendant from the date of the
filing of the original complaint. DITTO: STILL 3
Comments about 4t
• Still different from federal version, F.R.Civ.P.
4m, which provides that a complaint will be
dismissed if not served within 120 days.
Federal dismissal is without prejudice, may be
made by motion or sua sponte. Plaintiff may
get extension “for good cause shown.”
• Montana dismissal also without prejudice, but
DANGER if sol runs in meantime
New 5b2E/F
• “A paper is served under this rule by:
• …(E) sending it by electronic means if the person
consented in writing—in which event service is
complete upon transmission, but is not effective
if the serving party learns that it did not reach the
person to be served; or
• (F) delivering it by any other means that the
person consented to in writing—in which event
service is complete when the person making
service delivers it to the party of agency
designated to make delivery.”
Committee Note
• “Rule 5b2E has been added to conform to the
Federal Rules…in recognition of the practice of
service by admission.”
How to use Rule 5b2E,F to accomplish
electronic service
• Must obtain consent in writing from target
• Writing means hard copy
• Draft, file stipulation that service may be by
electronic means, designate the email address
• Change certificate of service to show that
service was made “pursuant to prior consent
in writing, filed with this court, electronically
by email to the following address: …..”
Proposed Rule 5(d)(1)
(d) Filing.
(1) Required Filings; Certificate of Service. Any
paper after the complaint that is required to be served –
together with a certificate of service – must be filed
within a reasonable time after service. But the
following discovery requests and responses must not
be filed until they are used in the proceeding, ordered
by the court in the Rule 16 conference, or the court
orders filing: depositions, interrogatories, requests for
documents or tangible things or to permit entry onto
land, requests for admission, expert disclosure
reports, and interrogatory answers.
Effect of 5d1:
• Don’t routinely file
– Depositions
– Interrogatories or answers
– Requests for production or responses
– Requests for admissions or responses
– Expert reports
Do file deposition notices
Present Rule 5(e)
(e) Filing With the Court Defined. The filing of
papers with the court as required by these rules
shall be made by filing them with the clerk of the
court, except that the judge may permit the papers
to be filed with the judge, in which event the
judge shall note thereon the filing date and
forthwith transmit them to the office of the clerk.
Papers may be filed by facsimile or other
electronic means, provided the original
document must be filed with the clerk within five
business days of the receipt of the facsimile copy
or the filing will be treated as void.
Proposed Rule 5(d)(3)(A)
(3) Electronic Filing, Signing, or
Verification.
(A) A court may, by local rule, allow papers to be
filed, signed or verified by electronic means
(other than facsimile) that are consistent with
any technical standards established by the court
or local rule. A paper filed by electronic means
in compliance with a local rule is a written paper
for purposes of these rules.
Proposed 5(d)(3)(B)
• “Papers may be filed by facsimile provided the
original document is filed with the clerk within
5 business days of the receipt of the facsimile
copy or the filing will be treated as void”
Proposed Rule 5d3 divides facsimile (allowed
then and now) from other electronic filing
(not allowed yet)
Committee Note re: Electronic Filing
• “Rule 5d3A, which allows for electronic filing
other than by facsimile, is purely anticipatory.
It follows the Federal Rules, but it is the
Committee’s intent that this Rule not become
operative until further order of the Montana
Supreme Court allowing electronic filing
(other than by facsimile) either on a statewide district court basis or in selected districts
as experiments.”
Present Rule 24(d)
(d) Cases involving constitutional questions
where the state is not a party. When the
constitutionality of any act of the Montana
legislature is drawn in question in any action, suit
or proceeding to which neither the state nor any
agency or any officer or employee thereof, as
such officer or employee, is a party, the party
raising the constitutionality of the act shall notify
the Montana attorney general and the court of the
constitutional issue…. The attorney general may
within 20 days thereafter intervene as provided in
Rule 24(c) on behalf of the state.
Proposed Rule 5.1 Constitutional Challenge to
a Statute - Notice and Intervention.
(a) Notice by a Party. A party that files a pleading, written motion, or other
paper drawing into question the constitutionality of a state statute must
promptly:
(1) file a notice of constitutional question stating the question and
identifying the paper that raises it, and to?? serve the notice and paper on
the state Attorney General either by certified or registered mail or by
sending it to an electronic address designated by the attorney general for
this purpose.
(b) Intervention; Final Decision on the Merits. Unless the court sets a later
time, the attorney general may intervene within 60 days after the notice is
filed or after the court certifies the challenge, whichever is earlier. Before
the time to intervene expires, the court may reject the constitutional
challenge, but may not enter a final judgment holding the state
unconstitutional.
(c) No Forfeiture. A party's failure to file and serve the notice, or the court's
failure to certify, does not forfeit a constitutional claim or defense that is
otherwise timely asserted.
Effect of new 5.1
• Changes time for A.G. to intervene from 20 to 60
days, more realistic
• ADDS new subsection, (c): “Failure to file and
serve the notice…does not forfeit a constitutional
claim or defense that is otherwise timely
asserted.” Same as F.R.Civ.P.
• No corollary to F.R.Civ.P. 5.1“(b) Certification by
the Court.The court must, under 28 U.S.C. §
2403, certify to the appropriate attorney general
that a statute has been questioned.”
Proposed Rule 5.2
Privacy Protection for Filings Made with the Court
(a) Redacted Filings.
(1) Unless the court orders or the law requires otherwise, in
any filing with the court that contains an individual's socialsecurity number, taxpayer-identification number, or birth
date, the name of an individual known to be a minor, or a
financial-account number, a party or nonparty making the
filing must include only:
(A) the last four digits of the social- security number and
taxpayer-identification number;
(B) the year of the individual's birth;
(C) the minor's initials; and
(D) the last four digits of the financial account number . . . .
Summary of Privacy
• Privacy requirements now in M.R.Civ.P. 5.2,
consistent with the Supreme Court’s Rules for
Privacy and Public Access to Court Records
http://courts.mt.gov/crt_records/default.mcp
x
• and similar to F.R.Civ.P. 5.2
• See also M.R.App.P. 10(7), 13(2)
Rule 6: DEADLINE COMPUTATION!!
• Big changes here: read new version over and
over
• Revise your calendaring system!!
• If need extension, make motion before the
deadline
• If move for extension after deadline, must
show “excusable neglect” AARGH
Most 10 day deadlines expanded to 14
• Committee Note:
“Most of the 10-day periods were adjusted to meet the change in
computation method by setting 14 days as the new period. A 14day period corresponds to the most frequent result of a 10-day
period under the former computation method - two Saturdays and
two Sundays were excluded, giving 14 days in all. A 14-day period
has an additional advantage. The final day falls on the same day of
the week as the event that triggered the period - the 14th day after
a Monday, for example, is a Monday. This advantage of using weeklong periods led to adopting 7-day periods to replace some of the
periods set at less than 10 days, and 21-day periods to replace 20day periods. Thirty day and longer periods, however, were generally
retained without change.”
Calculating the deadline: 6a
• Applies whenever a deadline set in number of days or
hours, but date not specified
• If court sets date (brief due on Feb. 7), court’s date controls
and Rule 6a does not apply
• 6a does not count the day which starts the event, but does
count every day in between, including weekends and
holidays. True whether more or less than 11 days
• Brief due in 15 days: don’t count Feb. 4, but do count last
day: Get brief in by Feb. 19, but last day is weekend, so can
file on Monday the 21st, but it is a holiday, so ok Tues 2/22
• Also true if court says brief due in 5 days: don’t count Feb.
4, but do count last: get in by Feb. 9
• Most deadlines in Rules are in multiples of 7 days
Motion deadlines: Rule 6c
• 14 days before the hearing, must serve
written motion and notice of hearing AND
must serve supporting affidavits, if any, WITH
the motion
• 7 days before the hearing: opposing affidavit
must be served
Present Rule 6
(a) Computation. In computing any period of time prescribed or
allowed by these rules, by order of court, or by any applicable
statute, the day of the act, event, or default after which the
designated period of time begins to run is not to be included. The
last day of the period so computed is to be included, unless it is a
Saturday, Sunday or a legal holiday, or, when the act to be done is
the filing of a paper in court, a day on which weather or other
conditions have made the office of the clerk of the district court
inaccessible, in which event the period runs until the end of the
next day which is not one of the aforementioned days. When the
period of time prescribed or allowed is less than 11 days,
intermediate Saturdays, Sundays and holidays shall be excluded
in the computation. A half holiday shall be considered as other
days and not as a holiday.
Proposed Rule 6
(a) Computing Time. The following rules apply in computing
any time period specified in these rules, or court order, or in
any statute that does not specify a method of computing
time.
(1) Period Stated in Days or a Longer Unit. When the
period is stated in days or a longer unit of time:
(A) exclude the day of the event that triggers the period;
(B) count every day, including intermediate Saturdays,
Sundays, and legal holidays; and
(C) include the last day of the period, but if the last day is a
Saturday, Sunday, or legal holiday, the period continues to
run until the end of the next day that is not a Saturday,
Sunday, or legal holiday
(2) Period Stated in Hours. When the period is stated in
hours: . . . .
When No Extensions allowed
Per Rule 6b2 for
– 50b and d (post-trial motions for judgment as a
matter of law/new trial)
– 52b (motion to amend findings of fact)
– 59b, d, e (motions for new trial, to alter/amend
judgment)
– 60 b (motion for relief from final judgment)
No current Rule Similar . . .
. . . To proposed Rule 7.1, which is regarding
disclosure statements by corporations
Committee Note says: “Rule 7.1 wholly adopts
the relevant language of the F.R.Civ.P [7.1
Proposed Rule 7.1
(a) Who Must File; Contents. A nongovernmental
corporate party must file 2 copies of a disclosure
statement that:
(1) identifies any parent corporation and any publicly held
corporation owning 10% or more of its stock; or
(2) states that there is no such corporation.
(b) Time to File; Supplemental Filing. A party must:
(1) file the disclosure statement with its first appearance,
pleading, petition, motion, response, or other request
addressed to the court; and
(2) promptly file a supplemental statement if any required
information changes.
MRCivP v. FRCivP 11
• Montana and federal rules same until
1983
• Big federal amendment to insert “teeth” in
1983
• Montana followed suit
• Several federal amendments 1993-2007
• Montana still has 1993 version, proposed
amendment now follows current F.R.Civ.P.
West Headnote of Day 2/2/11
• 170A Federal Civil Procedure
– 170AXX(C) Persons Liable for or Entitled to Sanctions
• In General. Rule 11's admonition that every
lawyer do necessary work to find law before
filing brief applies even to lawyers who have
two varsity letters in a collision sport and who
were presidents of their fraternities. Chambers
v. Am. Trans Air, Inc., 17 F.3d 998 (7th Cir.
1994)
Present Rule 11
Every pleading, motion, or other paper of a party represented by an attorney shall be
signed by at least one attorney of record in the attorney's individual name, whose
address shall be stated. A party who is not represented by an attorney shall sign the
party's pleading, motion, or other paper and state the party's address. Except when
otherwise specifically provided by rule or statute, pleadings need not be verified or
accompanied by affidavit. The signature of an attorney or party constitutes a
certificate by the signer that the signer has read the pleading, motion, or other
paper; that to the best of the signer's knowledge, information, and belief formed
after reasonable inquiry it is well grounded in fact and is warranted by existing law
or a good faith argument for the extension, modification, or reversal of existing law,
and that it is not interposed for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation. If a pleading,
motion, or other paper is not signed, it shall be stricken unless it is signed promptly
after the omission is called to the attention of the pleader or movant. If a pleading,
motion, or other paper is signed in violation of this rule, the court, upon motion
or upon its own initiative, shall impose upon the person who signed it, a
represented party, or both, an appropriate sanction, which may include an order
to pay to the other party or parties the amount of the reasonable expenses
incurred because of the filing of the pleading, motion, or other paper, including a
reasonable attorney's fee.
Proposed Rule 11
(a) Signature. Every pleading, written motion, and other paper must be
signed by at least one attorney of record in the attorney's name -- or by a
party personally if the party is unrepresented. The paper must state the
signer's address and telephone number, if any. Unless a rule or statute
specifically states otherwise, a pleading need not be verified or
accompanied by an affidavit. The court must strike an unsigned paper
unless the omission is promptly corrected after being called to the
attorney's or party's attention.
(b)(2) Representations to the Court…the claims, defenses and other legal
contentions are warranted by existing law or by a nonfrivolous [was good
faith] argument
(3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence, or if
specifically so identified, are reasonably based on belief or lack of
Effect of Signing per new Rule 11
– Must include attorney’s phone number on all papers
– Must specifically identify factual contentions and
denials which do NOT have evidentiary support; by
including, signer certifies that the contentions are
“likely to have support after a reasonable opportunity
for further investigation or discovery” and that the
identified denials are reasonably based on belief or
lack of information
• Legal contentions are warranted by existing law
or “nonfrivolous” [v. “good faith” argument]
ENORMOUS RULE 11 CHANGE,
UNSTATED
• Montana practice has traditionally allowed a
defendant to file an unsupported Rule 12b6
motion to gain more time to answer than the
20 days technically allowed by Rule 12a
• Montana Commission Comment to current
Rule 11 specifically exempted Rule 12b6
motions
• Proposed Rule/Comments make no exception!
ADVISORY COMMITTEE'S NOTE TO
OCTOBER 9, 1984, AMENDMENT
• ... It has been the practice for many years in both
Montana Federal and State Courts for the pleader to
first file a responsive motion to dismiss for failure to
state a claim upon which relief can be granted under
Rule 12(b) for the purposes of obtaining additional
time within which to prepare an answer and to inform
the court and parties that an appearance is being
made. The courts have recognized this practice and
routinely overrule the motions unless briefs are filed in
support or the motions are set for oral argument. It is
not the intent of the Advisory Commission in adopting
the foregoing amendment to do away with this
practice.
Proposed Rule 11: Notice/Safe Harbor
• (c)(2) Motion for Sanctions. A motion for sanctions
must be made separately from any other motion and
must describe the specific conduct that allegedly
violates Rule 1l(b). The motion must be served under
Rule 5, but must not be filed or be presented to the
court if the challenged paper, claim, defense,
contention, or denial is withdrawn or appropriately
corrected within 21 days after service or within
another time the court sets. If warranted, the court may
award to the prevailing party the reasonable expenses,
including attorney's fees, incurred for the motion.
Sanctions Changed: Less Bite?
• Now permissive, were mandatory
“If…the court determines that Rule 11(b) has
been violated, the court may impose an
appropriate sanction…
If imposed, sanctions not necessarily monetary:
may include nonmonetary directives; a
penalty paid to court; OR to opponent for part
or all of the fees and expenses caused by the
violation
How to Comply with New Rule 11
Substantively
• Do an inquiry which is reasonable under the
circumstances before filing any paper
• Identify any factual contentions or denials which
are NOT supported by the inquiry
• Do NOT file an unsupported Rule 12b6 motion to
dismiss simply to gain more time to answer: your
signature certifies, inter alia, that the paper is
“not being presented for any improper purpose,
such as …to cause unnecessary delay…”
How to comply with Rule 11
procedurally
• If move for sanctions, must
– Make separate motion, describing the specific
violation
– Serve motion on opponent
– Wait 21 days before file motion; target is allowed
to withdraw or correct in interim
– Prepare detailed proposed order describing the
sanctioned conduct and basis for the sanction
(11c6)
Rule 12(a): timing changed
• Old rule: 20 days to file answer to complaint
or cross-claim, reply to counterclaim (40 for
state)
• New rule: 21 days for answer to complaint,
counterclaim or crossclaim (42 for state)
• Old rule: If defendant made Rule 12 motion to
dismiss, denied, answer due in 20 days
• New rule: If Rule 12 motion to dismiss is made
and denied, answer must be filed within 14
days.
Proposed Rule 12(a)
(a) Time to Serve a Responsive Pleading.
(1) In General. Unless another time is specified by this rule or a statute, the time for
serving a responsive pleading is as follows:
(A) a defendant must serve an answer within 21 days after being served with the
summons and complaint, unless the court orders otherwise under Rule 4(a)(2)(c).
(B) a party must serve an answer to a counterclaim or crossclaim within 21 days after
being served with the pleading that states the counterclaim or crossclaim.
(C) a party must serve a reply to an answer within 21 days after being served with an
order to reply, unless the order specifies a different time.
(2) State of Montana and Its Agencies, Officers, or Employees Sued in an Official
Capacity. The State of Montana, a state agency, or a state officer or employee sued
only in an official capacity must serve an answer to a complaint, counterclaim, or
crossclaim within 42 days after service on the attorney general.
(3) State Officers or Employees Sued in an Individual Capacity. A state officer or
employee sued in an individual capacity for an act or omission occurring in
connection with duties performed on the state's behalf must serve an answer to a
complaint, counterclaim, or crossclaim within 42 days after service on the officer
or employee or service on the attorney general, whichever is later.
Proposed Rule 12(b)(3)
(b) How to Present Defenses. Every defense to a claim
for relief in any pleading must be asserted in the
responsive pleading if one is required. But a party may
assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
...
Present Rule 12(b)(i)-(iii)
(i) The cases in which place of trial may be changed are specified in section 25-2-201, Montana Code
Annotated.
(ii) If the county designated in the complaint is not the proper county for trial of the action, the
defendant must at the time of defendant's first appearance request by motion that the trial be had
in the proper county. Every defense in law or fact, to a claim for relief in any pleading which
defendant desires to present by way of motion as hereinabove provided must be joined with, or
inserted in, the motion requesting a change in the place of trial. If the court in which the action is
commenced grants the request for change of venue, that court shall not consider nor pass upon
other defenses in law, or fact, presented by the motion, but such shall be considered and decided
by the court sitting in the proper county after the transfer has been completed. No request for
change of venue is waived by being joined in a motion with other defenses or objections in law or
fact.
(iii) Any request for change in place of trial for grounds 2 and 3 of section 25-2-201, Montana Code
Annotated, must be presented by motion within 20 days after the answer to the complaint, or to
the cross-claim where a cross-claim is filed, or the reply to any answer, in those cases in which a
reply is authorized, has been filed; except that whenever at some time more than 20 days after the
last pleading has been filed an event occurs which thereafter affords good cause to believe that an
impartial trial cannot be had under ground 2 of said section 25-2-201, and competent proof is
submitted to the court that such cause of impartiality did not exist within the 20-day period after
the last pleading was filed, then the court may entertain a motion to change the place of trial
under ground 2 of section 25-2-201 within 20 days after that later event occurs.
Changes How to Plead Improper
Venue
• Old rule: venue not included in 12b per se,
gap where F.R.Civ.P. had 12b3
– Venue could ONLY be raised by motion
– Had to be raised at time of first appearance
New rule: improper (as of time of filing complaint)
venue a normal Rule 12b defense, may be made
by motion or, if no Rule 12b motion, in answer
Rule 23, Class Actions: Big Changes
COMMITTEE NOTES:
“The language of Rule 23 has been amended as
part of the general restyling of the Civil Rules to
make them more easily understood. The changes
have also been made to make style and
terminology consistent throughout these rules
and to conform to the recent changes in the
Federal Rules. These changes are substantive and
are intended to follow the Federal Class Action
Rule. The most significant changes are in Rules
24( f), (g) and (h)…”
Rule 26: Scope of Discovery
• History: big federal changes several years ago
• Montana has so far not followed many of those,
eg Montana has not yet adopted the federal
system’s mandatory pre-discovery disclosure or
the requirement of a detailed expert report
• 2010 Committee recommendation:
– Still no mandatory disclosure
– Still no detailed expert report
– More protection of expert’s drafts and communication
Recent Supreme Court action
• No formal order yet
• Meeting held 11/30/2010
• Divided court, rejected 26b5, proposed privilege
for communications between counsel and expert
and for drafts of expert’s reports (would have
conformed to F.R.Civ.P. 26b4 and ABA proposal.
“Wait and see how federal revision works”)
• Thus, expect no change, no specific protection for
experts (can still argue work-product….)
• Advice: don’t allow experts to communicate or
keep drafts in writing
Proposed Rule 26(b)(2)
(2) Limitations on Frequency and Extent.
New:
(B) Specific Limitations on Electronically Stored
Information. A party need not provide discovery of
electronically stored information from sources that the party
identifies as not reasonably accessible because of undue
burden or cost. On motion to compel discovery or for a
protective order, the party from whom discovery is sought
must show that the information is not reasonably accessible
because of undue burden or cost. If that showing is made,
the court may nonetheless order discovery from such
sources if the requesting party shows good cause,
considering the limitations of Rule 26(b)(2)(C). The court
may specify conditions for the discovery.
Proposed Rule 26(b)(3)
(3) Trial Preparation: Materials.
(A) Documents and Tangible Things. Ordinarily, a party may not discover documents
and tangible things that are prepared in anticipation of litigation or for trial by or for
another party or its representative (including the other party's attorney, consultant,
surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)( 4), those materials
may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its case and
cannot, without undue hardship, obtain their substantial equivalent by other means.
(B) Protection Against Disclosure. If the court orders discovery of those materials, it
must protect against disclosure of the mental impressions, conclusions, opinions, or
legal theories of a party's attorney or other representative concerning the litigation.
(C) Previous Statement. Any party or other person may, on request and without the
required showing, obtain the person's own previous statement about the action or its
subject matter. If the request is refused, the person may move for a court order, and
Rule 37(a)(5) applies to the award of expenses. A previous statement is either:
(i) a written statement that the person has signed or approved; or
(ii) a contemporaneous stenographic, mechanical, electrical, or other recording - or a
transcription of it - that recites substantially verbatim the person's oral statement.
Proposed Rule 26(b)(4)(A)(ii)
(ii) A party may depose any person who has
been identified as an expert whose opinions
may be presented at trial. Upon motion, the
court may order further discovery by other
means, subject to such restrictions as to scope
and such provisions, pursuant to subdivision
(b)(4)(C) of this rule, concerning fees and
expenses as the court may deem appropriate.
No Rule Similar . . .
. . . To proposed Rule 26(b)(5), which covers
draft reports by experts who are disclosed
under the proposed Rule 26(b)(4).
Proposed Rule 26(b)(5), apparently
rejected by Supreme Court
(5) Limitations on Discovery from Experts.
(A) In General. There shall be a privilege for draft reports and
communications between attorneys and experts retained and disclosed
under Rule 26(b)( 4) as follows:
(i) an expert's draft reports shall not be required to be produced to an opposing
party;
(ii) communications, including notes, reflecting communications between an
expert and the attorney who has retained the expert shall not be
discoverable except upon a showing of exceptional circumstances.
(B) Exceptions. Nothing in the preceding paragraph shall preclude opposing
counsel from obtaining any facts or data the expert is relying upon in
forming his or her opinion, including that coming from counsel, or from
otherwise inquiring fully of an expert into what facts or data the expert
considered, whether the expert considered alternative approaches, or into
the validity of the expert's opinions.
No Rule Similar . . .
. . . To proposed Rule 26(b)(7), which provides a
process to follow in the event of inadvertent
disclosure of privileged material.
Proposed Rule 26(b)(7)
(7) Claiming Privilege or Protecting TrialPreparation Materials.
(A) Information Withheld. When a party withholds
information otherwise discoverable by claiming that the
information is privileged or subject to protection as
trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications,
or things not produced or disclosed and do so in a
manner that, without revealing information itself
privileged or protected, will enable other parties to
assess the claim.
How to claim privilege/protection
Object: “privileged” or “work product”
AND describe the allegedly protected material
without breaching the protection
E.g., Defendant objects to production of the
following material on the basis of attorney-client
privilege:
Letter dated 2/4/2011 from Attorney Cynthia
Ford to Client Joe Smith, subject line: “About our
conference yesterday” and marked as “AttorneyClient privileged material”
New Procedure if mistakenly produce
privileged or protected material
• (B) Information Produced. If information produced in
discovery is subject to a claim of privilege or of protection
as trial-preparation material, the party making the claim
may notify any party that received the information of the
claim and the basis for it. After being notified, a party must
promptly return, sequester, or destroy the specified
information and any copies it has; must not use or disclose
the information until the claim is resolved; must take
reasonable steps to retrieve the information if the party
disclosed it before being notified; and may promptly present
the information to the court under seal for a determination
of the claim. The producing party must preserve the
information until the claim is resolved.
ACTION TO TAKE IF MISTAKENLY
PRODUCE
• DON’T
• If do, must immediately act
• Call/write opposing lawyer and assert
privilege or protection
• Demand (request?) return
• Move court for an order requiring return if
opponent refuses
ACTION TO TAKE IF GET OBVIOUSLY
MISTAKENLY PRODUCED MATERIAL
• YOU give it back without reading/using
• If contacted by opponent:
– Cannot use or disclose information until claim is
resolved
– Must return, or at least sequester or destroy
originals and any copies
– Must try to recover the information if you already
passed it on
– May move under seal for court determination
Proposed Rule 26(c)
(c) Protective Orders.
(1) In General. A party or any person from whom discovery is sought may move for a protective order
in the court where the action is pending or as an alternative on matters relating to a deposition, in the
court for the district where the deposition will be taken. The motion must include a certification
that the movant has in good faith conferred or attempted to confer with other affected parties in
an effort to resolve the dispute without court action. The court may, for good cause, issue an order
to protect a party or person from annoyance, embarrassment, oppression, or undue burden or
expense, including one or more of the following:
(A) forbidding the discovery;
(B) specifying terms, including time and place, for the discovery;
(C) prescribing a discovery method other than the one selected by the party seeking discovery;
(D) forbidding inquiry into certain matters, or limiting the scope of discovery to certain matters;
(E) designating the persons who may be present while the discovery is conducted;
(F) requiring that a deposition be sealed and opened only on court order;
(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; and
(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes,
to be opened as the court directs.
(2) Ordering Discovery. If a motion for protective order is wholly or partly denied, the court may, on
just terms, order that any party or person provide or permit discovery.
(3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses.
Proposed Rule 26(e)(1)(B)(2)
(e) Supplementing Responses.
(1) In General. A party who has responded to an interrogatory, request
for production, or request for admission must supplement or correct
its response:
(A) in a timely manner if the party learns that in some material respect
the response is incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to the
other parties during the discovery process or in writing; or
(B) as ordered by the court.
(2) Expert Witness. For an expert whose opinions must be disclosed
under Rule 26(b)(4), the party's duty to supplement extends both to
information included in the disclosure and to information given
during the expert's deposition. Any additions or changes to this
information must be disclosed by the time of the preparation and
submission of the pretrial order to the court.
Now clearly can depose experts
• Current M.R.Civ.P. 26b4 allows interrogatories
about experts, but seems to require
motion/order for further discovery such as
depositions
• Montana lawyers have always taken expert
depositions anyway, without court order
• Proposed Rule 26b4 adds Aii, specifically
allows depositions, retains motion/order
procedure for “further discovery” to conform
to actual practice (and federal procedure)
Proposed Rule 28(c)
From the 2007 Uniform Interstate Depositions and Discovery Act adopted by the MTSC
(c) Interstate Depositions and Discovery.
(1) Definitions. For purposes of this rule:
(A) "Foreign jurisdiction" means a state other than Montana;
(B) "Foreign subpoena" means a subpoena issued under authority of a court of record of a foreign jurisdiction;
(C) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company,
association, joint venture, public corporation, government, or governmental subdivision, agency or
instrumentality, or any other legal or commercial entity; and
(D) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands,
or any territory or insular possession subject to the jurisdiction of the United States.
(E) "Subpoena" means a document, however denominated, issued under authority of a court of record requiring a
person to:
(i) attend and give testimony at a deposition;
(ii) produce and permit inspection and copying of designated books, documents, records, electronically stored
information, or tangible things in the possession, custody or control of the person; or
(iii) permit inspection of premises under the control of the person.
(2) Issuance of a Subpoena.
(A) To request issuance of a subpoena under this section, a party must submit a foreign subpoena to a clerk of court
in the county in which discovery is sought to be conducted in Montana. A request for issuance of a subpoena
under this act does not constitute an appearance in the courts of this state.
(B) When a party submits a foreign subpoena to a clerk of court in this state, the clerk, in accordance with that court's
procedure, shall prompt! Y issue a subpoena for service upon the person to which the foreign subpoena is
directed.
(C) A subpoena under subsection (B) must:
(i) incorporate the terms used in the foreign subpoena; and
(ii) contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the
proceeding to which the subpoena relates and of any party not represented by counsel.
ULC Comment on Uniform Rule
• “The act is simple and efficient: it establishes a simple clerical
procedure under which a trial state subpoena can be used to issue a
discovery state subpoena. The act has minimal judicial oversight: it
eliminates the need for obtaining a commission, letters rogatory,
filing a miscellaneous action, or other preliminary steps before
obtaining a subpoena in the discovery state. The act is cost
effective: it eliminates the need to obtain local counsel in the
discovery state to obtain an enforceable subpoena. And the act is
fair to deponents: it provides that motions brought to enforce,
quash, or modify a subpoena, or for protective orders, shall be
brought in the discovery state and will be governed by the
discovery state’s laws.”
• http://www.law.upenn.edu/bll/archives/ulc/iddda/2007act_final.ht
m
Rule 23c helps out-of-staters
• Provides procedure for someone to take the
deposition of a Montanan for use in litigation
in another state
• Montana lawyers should be able to use the
same simple procedure to take a deposition in
another state, but depends on whether that
state has also adopted the Uniform Act
• If not, have to consult the other state’s Rules
of Civil Procedure; probably hire local counsel
All She Wrote? Not by a long shot
• I’ve got almost 80 more slides, but can’t cover
everything in one or two hours
• Can repeat research route:
– Wait for confirmation that Supreme Court has
adopted new rules
– Get a copy of the new rules and the Committee
Notes
– Check every time you use a rule whether it’s been
changed. Have to learn new tricks, whether
you’re a pup or an octogenarian