The Utah Supreme Court recently adopted revisions to the Utah Rules of Civil Procedure which are rules that apply to all cases filed in Utah’s state courts on or after November 1, 2011. Those rules govern the procedure followed in civil litigation. The revisions are significant, and the amended rules are unlike rules of civil procedure currently in use anywhere else in the country. Failure to adhere to the rules subjects a party to potentially severe consequences, including monetary and other sanctions from a court. The revisions to Utah’s Rules of Civil Procedure are relevant not only to companies currently dealing with litigation, but also to those considering other issues. Such issues may include the question of whether to choose Utah Law as the law governing any future disputes under a new or amended contract and whether to name state courts in Utah as the venue for such disputes when other options may be available. This article does not provide a comprehensive summary of the changes to the rules, but rather it is intended to underscore a few of the more significant revisions.
The amended Rules of Civil Procedure require parties to provide each other with the following information shortly after a party files a complaint and instigates a case (the former rules did not required parties to investigate or disclose until much later in the litigation process): (1) the name, address and telephone number of witnesses the party may call in its case in chief, and a summary of the expected testimony from each of those witnesses; (2) a copy of all documents and things in the possession or control of the party which that party may offer as evidence in its case; (3) a copy of all documents to which a party refers to in its pleadings; and (4) a computation of the party’s damages, including a copy of all documents on which that computation is based. This amendment has the effect of requiring parties to expend more time and resources at the front end of a litigation than was previously required.
Under the amended Rules of Civil Procedure, a party seeking information from an opposing party in a litigation through “discovery” has the burden of establishing that the cost of the information they are requesting is proportional to what is at stake in the litigation. If the information a party is requesting is challenged by its opponent as being overly burdensome, the party seeking that discovery must be able to show that the costs involved in the requested discovery are proportional to what is at stake in the litigation. To ensure proportionality, a court may require a party requesting discovery to pay for some or all of the costs related to that discovery. Under the old rules, a party opposing discovery requests had the burden of showing that those requests were overly burdensome.
Another significant revision to the Rules of Civil Procedure is the categorization of cases into one of three “Tiers” based upon the amount of money at issue in the case, Tier 1; Tier 2; and Tier 3. Tier 1 cases involve asserted damages of $50,000 or less, Tier 2 cases involve $50,001-$300,000 in claimed damages, and Tier 3 cases involve claimed damages in excess of $300,000. The amount of discovery a party is entitled to without permission from the court and the amount of time a party has to conduct that discovery depends upon which Tier into which that party’s case falls. Parties instigating a lawsuit are required to identify what tier their case falls under within their complaint.
The amended Rules of Civil Procedure have dramatically altered the amount of discovery to which any party to any litigation is entitled without permission from the court. For example, a party in a Tier 1 case is now only able to take a total of 3 hours worth of formal out of court testimony through depositions without obtaining permission from the court to take additional depositions (as opposed to the approximately 70 hours of deposition testimony generally permitted under the old rules). The amended rules also impose new stricter limits on other types of discovery, including the number of requests that a party can make for different types of documents from their opponent and the number of questions a party can ask another party in writing through interrogatories. These amended rules also impose new limits on expert discovery.
We welcome the opportunity to visit with you and address any questions you may have regarding the amended rules and how they may affect you or your business.
For more information, contact us at 801-532-7840.