By: Michael Mather
Continuing its recent trend to mirror their federal counterpart, the Minnesota Supreme Court (the “Court”) recently approved several amendments to the Minnesota Rules of Civil Procedure (“MRCP”). Both substantive and procedural in nature, these changes were adopted with an eye towards usability and efficiency and will certainly affect civil practice in Minnesota.
This article will describe the most impactful changes and the purpose behind those changes.
Streamlined Waiver of Service Procedure (Rule 4.05)
The Court rewrote Rule 4.05 to eliminate the “game playing” under the former rule, which never worked in practice and allowed the defendant to control service of process and unnecessarily increase litigation costs. Under the new rule, and like its federal equivalent, a plaintiff may request a waiver of formal service by complying with the procedural requirements of Rule 4.05. Unlike the former Rule, defendants now must respond to the waiver request or pay – quite literally – the costs of formal service and associated attorney’s fees. As a carrot to go with the stick, the Rule expressly provides any objections to personal jurisdiction and venue are preserved if service is waived and extends the deadline to formally respond from 20 to 60 days upon waiver of service.
In a nod to the rapid pace of technology, the Rule also “allows valid service to be accomplished by any means that is agreed to the defendant being served – mail, private courier, email, or even social media.”1
In approving this change the Court acknowledged the Rule’s success in federal practice and expressed hope the same benefits will apply to Minnesota parties, practitioners, and courts.
Revisions to the Discovery Rules: More Form than Substance (Rules 26, 34, 37)
The Court also approved amendments to Rules 26, 34, and 37. Although there are substantial changes in form, these amendments provide little change in substance, as much of these amendments formally adopt many procedures that are already part of practice.
The scope of discovery defined by Rule 26.02 was reworked to adopt the proportionality requirement first codified by the federal rules. This change is “intended to improve the operation of the rule and to avoid some of the problem that were encountered under the old rule.”2
Rule 26.03 is amended to expressly allow district courts to consider cost-shifting as a means of protective relief when issuing protective orders. The advisory committee clarified that the change “is not intended to make cost-shifting a routine part of discovery motions but recognizes that there are some situations where it is appropriate.”3 The responding party will need to request a cost-shift from the court to take advantage of this Rule.
Other changes to Rule 26 are intended to address ever growing concerns regarding preservation and production of electronic information. Rule 26.04 is amended to allow for immediate service of Rule 34 requests for production of documents. This change does not accelerate the deadline to respond but is intended to provide early notice of the need to preserve electronic evidence and reduce the potential for spoliation disputes. Revised Rule 26.06 requires the parties to specifically discuss preservation of electronically stored information when making a discovery plan. These new requirements are intended to recognize “both the importance of document-preservation issues and the benefits of addressing the issues early in the case.”4
Revised Rule 34.02 seeks to provide clarity to the written responses to document requests, and now “requires a party asserting an objection to a request for production to disclose whether any document is being withheld from production based on those objections.”5 This change is intended to prevent attorneys from objecting to requests and not indicating whether the objection was actually used to withhold documents from production – a frequently used tactic that frustrates efficient discovery.
Rule 37 is amended to add teeth to the new discovery procedures under Rule 26. Rule 37.01 allows a motion for an order to compel discovery if “a party fails to produce documents or fails to respond that inspection will be permitted – or fails to permit inspection.”
The Court also added specific procedures for the loss of electronically stored information (“ESI”). If a party should have preserved ESI but failed to, and that information cannot be restored or replaced from an alternative source, the revised rule provides the district court two options. If the non-spoliating party suffered prejudice, the district court must order a remedy that does no more than cure that prejudice. But, if the district court finds the failure to preserve ESI was coupled with an intent to deprive the other party of the information, the district court may order an adverse inference or presumption against the party or dismiss the action entirely.
This is a substantial change from the previous rules governing adverse inferences, which encouraged the courts to consider intent when reviewing a spoliation event, but did not specifically require a finding of intent before granting an adverse inference or dismissal as a sanction.
The advisory committee noted that while this rule is specifically directed at ESI, courts can use it “where there is a failure to preserve other evidence, such as physical evidence or documents in a non-electronic form.”6
Substantial Overhaul of the Summary Judgment Form, But Minimal Practical Effect (Rule 56)
Rule 56 was re-worded and re-organized to substantially mirror the federal Rules. However, the Court made clear these changes are not intended to revise the summary judgment standards, and specifically advised that the “no genuine issue as to any material fact” standard is carried forward, and the Court does not adopt the federal “no genuine dispute as to any material fact” standard.
Perhaps the biggest change to the summary judgment procedure is Rule 56.03, which now specifies that the district court is not required to consider any evidence other than what is submitted with the motion when ruling on a request for summary judgment. Although the Rule preserves the district court’s ability to look at the entire record, best-practice suggests litigants should submit all pleadings, documents, deposition transcripts, affidavits, and other exhibits relied on in the motion with the moving papers, even if those documents are already in the record.
The Court also revised Rule 56.05, and now provides district courts guidance when faced with motions containing unsupported factual assertions. Under Rule 56.03, a movant must support its motion for summary judgment with specific citations to materials in the record. If a movant fails to provide this citation support, Rule 56.05 advises district courts to either provide an opportunity to supplement the motion, deem the unsupported or unchallenged facts outside the record undisputed, or issue any other order that the court deems appropriate.
The remaining amendments revamp other sections of the rule to improve its operation in practice.7
Updated Judicial Disqualification Standard (Rule 63.02)
Rule 63.02 was amended to adopt the judicial disqualification standard of the Minnesota Code of Judicial Conduct to the disqualification under the civil rules.8 Previously, the Rule specified that a judge must recuse himself or herself from a case “if that judge is interested in its determination or if that judge might be excluded for bias from acting therein as a juror.” The amendment removes the comparison to jurors. The new standard mandates recusal “in any proceeding in which the judge’s impartiality might reasonably be questioned,” and provides examples, including personal bias, knowledge of a party/attorney, or economic interest, among others.9
Cy Pres Fund Distributions (Rule 23)
The Supreme Court also considered a petition to amend Rule 23 to require that at least 50% of unclaimed, undistributed residual funds in class actions (i.e. cy pres funds) be donated to the Minnesota Legal Aid Foundation Fund. While acknowledging similar provisions in other states have provided substantial benefits to civil legal services that provide “meaningful access to civil justice,”10 the Court raised a concern that the revision was “untethered from the nexus of the class action,”11 and would “unnecessarily constrain the district court’s evaluation of what is fair, adequate, and reasonable in a given case.”12
In light of these considerations, the Court rejected the specific proposal, but crafted a solution of its own, and amended the Rule to require notice to legal service providers when the district court is considering the possible distribution of cy pres funds.13 This change ensures legal service providers are provided an opportunity to participate in the distribution of cy pres funds, but retains the district court’s discretion to decide how the funds are ultimately distributed.
Nominal Changes to Other Rules
Finally, the Court made minor changes to rules 3, 10, 14, 30, 31, and 67. Most of these amendments are grammatical or intended to address cross-referencing issues with other amendments.
Effective Date for Pending and New Cases
The amendments to Rules 26, 34, 37, and 63 will only apply to new cases commenced on or after July 1, 2018. The other amendments will apply to all cases pending in Minnesota as of July 1, 2018.
More Changes on the Horizon…
In addition to the above changes, the Advisory Committee also recommended amending the timing deadlines contained in the Rules from the 5-, 10-, and 20-day deadlines to a more standard 7-, 14-, 21-, and 28-day system. The proposed changes would mirror the federal rules and simplify the counting process by eliminating the exclusion of weekends and holidays for deadlines less than 7-days. Under the revised rule, all days would be counted when calculating a deadline, eliminating the confusion that exists under the current Rule.
Although the Supreme Court recognized the benefits of uniformity in procedures and reducing confusion, it referred the proposal to the Advisory Committees for the General Rules of Practice, the Rules of Criminal Procedure, and the Rules of Appellate Procedure for additional comment and analysis. The recommendations from these committees are due to the Court by October 1, 2018.
The Supreme Court’s amendments to the Rules of Civil Procedure attempt to improve their function, increase efficiency, and reduce costly game-playing. All litigators practicing in Minnesota would be well served by reviewing these amendments and incorporating them into daily practice.