RULES OF CIVIL
PROCEDURE
STATE AND FEDERAL
THEN AND NOW
January 2009
No Handout Materials
• CD format: too big to print and bring
• Will post to website: UM Law/faculty/Ford
• Will post this PowerPoint as well, for
highlights
• 3 parts
– List of Montana rules which differ
– Montana rules, showing differences
– Federal rules, showing differences
History of Federal Rules
• Pre-1938: each federal court followed
civil procedure of state in which it sat
• Rules Enabling Act (1934) authorized
Supreme Court to adopt rules of
procedure for the lower federal courts
• 1938 Federal Rules of Civil Procedure
Limits on Federal Rules
• Rules Enabling Act: “shall not abridge,
modify, or enlarge substantive law”
• Federal Rules challenged frequently as
violating this restriction e.g. Sibbach v.
Wilson (1942)
• U.S. Supreme Court has never found a
rule invalid on this basis
Erie Doctrine
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1789 Rules of Decision Act
State law to provide “rules of decision”
Apply in all federal diversity cases
Not applicable to federal question cases
Erie v. Pennsylvania Ry.
– State substantive law = “outcome
determinative”
– Federal procedure
“Substantive” for Erie: State
• Negligence: Erie Ry. (duty of ry. to
trespasser)
• Contributory negligence
• Statute of limitations
• Conflict of Laws/choice of law:
Klaxon
“Procedural” for Erie:
federal
• Allocation of judge/jury role
• F.R.Civ.P.
• F.R.App.P.
“New” (1939) Federal Rules
• Transnational: applied to every
federal district court across U.S.
• Downside: lawyers in single state
had to master two procedural
systems to practice in state and
federal courts there
• Meant to correct deficiencies in old
procedural regimes
Major Innovations of
F.R.Civ.P.
• Shortened pleading phase:
– Notice pleading
– 2-stage pleading the norm; before, 3-4 stages
• Added discovery
full disclosure of information to both sides
key to goal of justice through trial on the
merits
• Increased judicial oversight: e.g., pretrial
conferences
Overall Purpose of F.R.Civ.P.
• Rule 1:
“These rules govern the procedure in
all civil actions and proceedings in the
United States district courts, except as
stated in Rule 81. They should be
construed and administered to secure
the just, speedy, and inexpensive
determination of every action and
proceeding.”
State Adoption of F.R.Civ.P.
• 1939-2007 adoption of rules based largely on
federal model:
• “Wait and watch”
• Late ‘80s survey: 22 states plus D.C., number is
quoted even in very current sources.
• 2001 article: only 8/22 states had adopted
enough of the subsequent amendments to keep
them in-line with the then-current rules:
Minnesota, Montana, North Dakota, Tennessee,
Utah, Vermont, Washington, and West Virginia.
Tribal Adoption of FRCivP
• “I can’t find any statistics at all. I can find
discussions that mention that tribes have
adopted them, but nothing with any sort of
numbers. I can’t even find enough in the
discussions to make an educated guess.”
• Montana Tribes which have Civil Procedure
rules based on the F.R.Civ.P:
– CS&K and Crow.
– Unclear: Blackfeet, Rocky Boy’s, Northern Cheyenne,
Fort Belknap, Fort Peck?
Montana Rules of Civil
Procedure
• Legislature created the Civil Rules
Commission in 1959, repealed in 1977
• Montana Supreme Court adopted original
rules Dec. 12, 1960
• Legislature enacted 1961, became effective
January 1,1962
SIMILAR TO, BUT NOT IDENTICAL WITH,
FEDERAL RULES: “They’re not the boss of us”
Modeled on F.R.Civ.P.
• “As the notes of the Civil Rules
Commission and the Advisory
Committee indicate, many of the
Montana Rules of Civil Procedure are
patterned after the Federal Rules of
Civil Procedure… The Civil Rules
Commission, the Advisory Committee,
and the compiler have frequently
compared the M.R.Civ.P. to the
F.R.Civ.P. and have occasionally made
reference to the notes or report of the
"Federal Advisory Committee…”
Montana Rule
Research Route
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Read the rule
Montana Commission Comment
Montana Supreme Court cases
Compare to Federal Rule
Only if they are similar:
Federal Commission Comments
Federal Treatise
Federal Cases
Major divergences between
Montana and Federal
• Rule 4: time for service of process
• Rule 11: certification requirements and
consequences of violation
• Rule 26: discovery
• Rule 35: waiver of doctor-patient
privilege
Time for Service of Process
• Montana: 3 years: M.R.Civ.P. 4E
–Replaces former 41e
• Federal: 120 days: F.R.Civ.P. 4m
Rules 11
• Montana and federal rules same until
1983
• Big federal amendment to insert “teeth”
in 1983
• Montana followed suit
• Several federal amendments 19932007, Montana still has 1993 version
Montana Rule 11
• Certification provision more general
• Mandatory sanctions
• Sanctions usually monetary, paid to
opponent
• Rule does not articulate procedure
• Goodover v. Lindey’s requires separate
motion, notice, hearing
Current Federal Rule 11
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More specific certification provision
No mandatory sanction for violation
Safe harbor provision
Procedure specified in rule
Sanctions, if imposed, “limited to what is
sufficient to deter repetition”
No profit for moving party
Discovery
• Orthodox methods of discovery in both
state and federal rules:
– Interrogatories
– Depositions
– Requests for Production
– Requests for Admission
– Mental and Physical Exams
Federal Mandatory
Prediscovery Disclosure
• Rule 26a “General Provisions
Governing Discovery; Duty of
Disclosure”
• Initial Mandatory Disclosure
• Disclosure of Expert Testimony
• Pretrial Disclosures of witnesses and
exhibits; pretrial objections to exhibits
Mandatory Discovery Planning
• FRCivP 26f
• Parties required to confer 21 days
before scheduling conference or order
under 16b
• Discuss/plan disclosure
process/electronic issues/privilege-work
product issues
• Written report to court
Federal Expert Disclosure
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26a2
Witness must prepare and sign written report
Opinions and bases
Data considered
Exhibits
Qualifications, including publications past 10
years
• Compensation
• Prior cases in past 4 years, trial or deposition
Electronic Discovery
• Recent federal amendments to deal
with discovery of information which is
stored electronically
• Affects several federal rules
• Upshot: parties entitled to discover
electronic information
Montana Supreme Court
2/28/2007
• The Advisory Commission on Rules of Civil
and Appellate Procedure appointed a
subcommittee of the Commission to study
whether we should amend the Montana
Rules with respect to the discovery of
electronic information to conform more
closely with recent amendments to the
Federal Rules of Civil Procedure on this
same issue.… The Commission unanimously
supports amending Rule 26 of the Montana
Rules of Civil Procedure and the related rules
to facilitate electronic discovery.
Adopts “Majority Proposal”
• We agree with the Commission that the
Montana Rules of Civil Procedure should be
amended to provide more specific guidance
with respect to the discovery of electronic
information. The Majority Proposal provides
the appropriate mechanism for this guidance.
• IT IS ORDERED that Majority Proposal to
Amend Rule 26 of the Montana Rules of Civil
Procedure and Related Rules to Facilitate
Electronic Discovery is ADOPTED;
Minority Proposal too much
• We recognize and acknowledge the
concerns of discovery abuse raised
by the Minority Proposal. [But]
neither the Federal Rules nor the
rules of civil procedure of any other
jurisdiction, have imposed the types
of responsibilities and obligations
contained in the Minority Proposal.
We likewise deem it unnecessary
to adopt these types of
responsibilities obligations [sic] at
this time. In so doing, we
emphasize that we retain the ability
to modify the rules regarding the
discovery of electronic information
in the future if practice dictates the
need …
Montana Rules Affected by 2007
Electronic Discovery Amendments
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16b: Scheduling Order
26b: Discovery Scope
26f: Discovery Conference
33b: Interrogatories: option to produce
business records
• 34: Requests for Production
• 37: Discovery Sanctions
• 45: Subpoenas
Federal Amendments Effective
12/1/07= NOW!
• Supreme Court approved amendments
April 30, 2007
• Congress took no action to change
• Thus, effective 12/1/07
• govern all proceedings commenced
on or after December 1, 2007, and
"insofar as just and practicable" all
proceedings then pending.
Restyled all Federal Rules
• “Restyled Civil Rules 1-86,
Restyled Illustrative Civil Forms 1
through 82, and new Civil Rule
5.2”
• Text of the amended rules and
extensive supporting
documentation can be found at:
• www.uscourts.gov/rules/congress0
407.htm
Comprehensive Style
Revision
• Series of comprehensive revisions to
simplify, clarify, and make more uniform
all of the federal procedural rules
• Also some style-substance
amendments: minor, uncontroversial
amendments correcting ambiguities and
inconsistencies revealed during the
style review
Example of Restyled Rule
• Old 8e2
• “When two or more statements are
made in the alternative and one of them
if made independently would be
sufficient, the pleading is not made
insufficient by the insufficiency of one or
more of the alternative statements.”
New 8e2, restyled
• “If a party makes alternative
statements, the pleading is
sufficient if any one of them is
sufficient.”
Style-Substance Federal
Changes now effective
• “Style-substance track”
• Rules 4k, 9h, 11a,14b, 16c, 26g, 30b,
31c, 40, 71.1d, and 78a
• 11a/26g: include email address in all
filings and discovery documents
– Note: “does not of itself signify consent to
filing or service by e-mail”
New F.R.Civ.P. 5.2
• Civil Rules version of the E-Government
Rules
• Rule 5.2. Privacy Protection For Filings
Made with the Court (a) Redacted Filings.
Unless the court orders otherwise, in an
electronic or paper filing with the court that
contains an individual’s social-security
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 may include only:
• (1) the last four digits of the
social-security number and
taxpayer-identification number;
(2) the year of the individual’s
birth; (3) the minor’s initials; and
(4) the last four digits of the
financial-account number. …
• (b) Exemptions…
• (c) Limitations on Remote Access to
Electronic Files; Social-Security Appeals
and Immigration Cases. Unless the court
orders otherwise, in an action for benefits
under the Social Security Act, and in an
action or proceeding relating to an order of
removal, to relief from removal, or to
immigration benefits or detention, access to
an electronic file is authorized as follows: (1)
the parties and their attorneys may have
remote electronic access to any part of the
case file, including the administrative record;
• (2) any other person may have
electronic access to the full record at
the courthouse, but may have remote
electronic access only to: (A) the docket
maintained by the court; and (B) an
opinion, order, judgment, or other
disposition of the court, but not any
other part of the case file or the
administrative record. (d) Filings Made
Under Seal.
The court may order that a filing
be made under seal without
redaction. The court may later
unseal the filing or order the
person who made the filing to file
a redacted version for the public
record. (e) Protective Orders.
• For good cause, the court may by order
in a case: (1) require redaction of
additional information; or (2) limit or
prohibit a nonpartyﾕs remote electronic
access to a document filed with the
court. (f) Option for Additional
Unredacted Filing Under Seal. A
person making a redacted filing may
also file an unredacted copy under seal.
The court must retain the unredacted
copy as part of the record.
• (g) Option for Filing a Reference
List. A filing that contains redacted
information may be filed together
with a reference list that identifies
each item of redacted information
and specifies an appropriate
identifier that uniquely corresponds
to each item listed.
• The list must be filed under seal and
may be amended as of right. Any
reference in the case to a listed
identifier will be construed to refer to
the corresponding item of information.
(h) Waiver of Protection of Identifiers.
A person waives the protection of Rule
5.2(a) as to the person’s own
information by filing it without
redaction and not under seal.
Upcoming Federal
Amendments
• Published for comment
• Rules 8, 13, 15, 48, new 62.1, 81
• Proposed Time-Computation Amendments
to the Federal Rules of Appellate,
Bankruptcy, Civil, and Criminal Procedure
To see proposed amendments: see
http://www.uscourts.gov/rules/
To comment electronically:
Rules_Comments@ao.uscourts.gov
New U.S.District Court Local
Rules
• Extensive Revisions effective January
7, 2008
• Available at website:
• http://www.mtd.uscourts.gov/rules.htm
MT Advisory Committee Now
• Following the enactment of the rules, the
Legislature created an Advisory
Committee on Rules to advise the
Supreme Court on subsequent amendment
of the adopted rules. The Advisory
Committee was created by Ch. 16, L. 1963,
and continues to advise the court in a
manner similar to the original Commission,
under the authority of 3-2-702, MCA, and
Rule 86(a), M.R.Civ.P.
Montana Civil Rule
Commission Currently Active
• Jim Goetz, Bozeman, chair
• Undertaking study of Montana Rules in
comparison to newest version of Federal
Rules to determine which/whether Montana
Rules should follow federal amendments
• Comments/observations to Chair
• Committee Members currently reviewing
each rule and will give first drafts to
Committee this month
Recent Montana S Ct Orders
• Website:
http://www.courts.mt.gov/newrules.asp
• Sept. 2008: Uniform District Court Rule
9 re: jury questionnaires: Access to
answers limited to parties and court, to
be destroyed after jury term over
Uniform District Ct Rules
changed 6/08
On June 19, 2003, this Court ordered the
Commission on Uniform District Court Rules to
meet and address the question of trial court
delay. …On July 30, 2007, Mr. Grant advised
the Court that the Uniform District Court Rules
Commission and the District Court Council had
met and that the Commission had unanimously
voted to resubmit the proposed rule changes for
the Courtﾕs consideration. On November 13,
2007, the Court published the proposed rule
changes and provided a ninety-day comment
period.
1. The proposed amendments to Rules 1, 2,
4 and 5 are hereby adopted.
2. Adoption of proposed new Rules 3, 11
and 12 is hereby rejected without
prejudice to submission at a later date.
3. The Uniform District Court Rules, as
amended hereby and attached to this
Order, shall become effective on June 1,
2008.
DATED this 19th day of March, 2008.
UDCR rules changed
• Most all of the filed comments stated that, unless
the District Courts were given further resources,
including additional judges, the courts were not
in a position to comply with the suggested time
constraints set forth in proposed Rules 3, 11 and
12. It was also noted that those new rules are
premature until such time as the District Court
performance standards are completed and until
the 2009 Legislative Session has had an
opportunity to address any requests for
additional resources for the District Courts.
Summary 08 UDCR changes
• Rule 1. Form of papers presented for
filing.
• Rule 2. Motions.
• Rule 4. Filing of discovery. Commission
Comment: “Although not specifically
prohibited by this rule, in line with not filing
discovery it is also is not necessary to file a
notice of taking of deposition, notice of
serving discovery, notice of serving
responses to discovery, or any other
discovery-related notice.”
UDCR affected ‘08, cont’d
• Rule 5. Pre-trial order and pre-trial
conference.
MRCivP 54b Certification
Montana Supreme Court Order 12/12/07:
“M. R. Civ. P. 54(b) permits a court faced with
multiple parties or multiple claims to enter a
final judgment ‘as to one or more but fewer than
all of the claims or parties only upon an express
determination that there is no just reason for
delay and upon an express direction for the
entry of judgment.’ Satterlee v. Lumberman’s
Mutual Casualty Company, 2007 MT 325…
…Under M. R. App. P. 4(4)(b) and 6(6),
appeals certified as final pursuant to M. R.
Civ. P. 54(b) are initially treated differently
from other appeals. For that reason,
Forms 1 and 2 appended to the Montana
Rules of Appellate Procedure provide that
the appellant or cross-appellant certify
that the appeal or cross-appeal
‘_____is/is not_____’ from a judgment
certified as final under M. R. Civ. P.
54(b)…
…Obviously, most appeals and crossappeals are not from judgments certified
as final under M. R. Civ. P. 54(b). And,
while it would seem to go without
saying, we expect counsel to actually
determine whether their appeal or
cross-appeal involves a judgment
certified as final under M. R. Civ. P.
54(b). It is not acceptable practice to
certify that every judgment is final under
M. R. Civ. P. 54(b) as a number of
attorneys have when the judgment
appealed from has not been so certified
by a district court.
…Nor is it acceptable practice for attorneys to
draft a form of notice of appeal that certifies that
every appeal is from a judgment certified as
final pursuant to M. R. Civ. P. 54(b). Finally,and
it should embarrass some that we even need to
say this,the certification statements on Forms 1
and 2 include blank spaces and alternative
statements, e.g., ‘_____is/is not_____.’ It was
and is this Court’s intention that counsel check [
X] or [X] whichever alternative statement is true,
not simply include both statements, albeit
without the blanks, in his or her form notice of
appeal.
…This procedure is to be followed for
each of the other certification statements
with blanks as well. Therefore, in order to
obviate this Court wasting its limited time
and resources reviewing notices of appeal
and cross-appeal that do not involve
appeals from judgments actually certified
as final under M. R. Civ. P. 54(b)
THE ORDER
• IT IS ORDERED that, upon filing a notice of
appeal or cross-appeal which improperly
certifies that the appeal is from a judgment
certified as final under M. R. Civ. P. 54(b), the
Clerk of this Court shall notify the person filing
the notice to file a corrected notice of appeal or
cross-appeal on Form 1 or 2 within eleven (11)
days or face dismissal of the appeal or crossappeal. … If the corrected notice is not timely
filed, the Clerk shall refer the matter to this
Court. The Clerk’s costs of notice, postage and
photocopying shall be paid by the person filing
the corrected notice at the time it is filed.
MT Rules for Public Access
and Privacy to Court Records
• Effective 7/1/08
In 2005, the Montana Supreme Court
began the process to establish the
policy and rules to govern electronic
access to Montana's Court Records…
Montana Supreme Court Order No. AF
06-0377 adopted the Rules Relating to
the Privacy and Public Access to Court
Records in Montana. These rules will
be referred to as Privacy Rules.
Synopsis of Privacy Rules
• Court records include any document,
information, exhibit, or other thing
filed in a court case by the parties or
their lawyers.You should not put in a
document filed with the court
sensitive personal information, unless
the information is required by law or
ordered by the court. If the
information is required by law or
ordered by the court you should file
this information on a sensitive data
sheet.
• Sensitive data is defined in the
Rules as financial account
numbers, full dates of birth of
any person and social security
numbers. Sensitive data also
includes the names of minor
children unless state law
requires the full names be part
of the public record.
It is your responsibility to make
sure that any document you file
follows the law when sensitive
personal information is involved.
The Court or Clerk of Court will
not review documents submitted
for filing to see if it has
information that should not be
there, or information which
should be protected from public
access.
• If you want to keep other
types of information
confidential that are not
protected by law, you may
file a Motion to Seal. Your
motion may ask for the
entire case, a particular
document, or a portion of a
document to be kept
confidential.
• However, the basis for a judge
limiting public access to court
records is quite limited. The
Court will carefully weigh your
right to privacy against the
public's right to know. The Court
will choose the least restrictive
alternative to keeping
information confidential.