Changing the Way We Litigate Minnesota Cases Major Civil Rules Changes Effective July 1

The Minnesota Supreme Court has just handed down some major revisions to the civil rules (found HERE). These changes will result in some significant changes in the way our civil cases are handled. The changes were just handed down yesterday and will be effective July 1, 2013. The issues of most concern to claims handlers have been summarized in the five numbered points at the end of the article. 

1.) The amendments may limit the use of pocket service by Plaintiffs by providing that actions must be filed with the court within one year of service or they are automatically dismissed. Plaintiffs may be less willing to use pocket service if their case can be dismissed and would have to be refiled-statute of limitations issues might come into play. No actions will be dismissed until July 1, 2014, so the bar gets a year to figure this out.

2.) Rule 26 is substantially rewritten and "federalized." An initial disclosure requirement is added and requires parties to automatically disclose such things as: the names of witnesses with knowledge of discoverable information; any relevant documents; an itemization of damages with supporting information made available for inspection; and disclosure of insurance information. These disclosures are due for both parties 60 days from the original due date of the answer.

3.) Absent a provision in a scheduling order, expert disclosures are required 90 days before trial with a 30 day provision for rebuttal disclosures.

4.) Pretrial disclosures must be made 30 days before trial, including witness identity and contact information, identification of deposition testimony, and identification of all exhibits. Parties must object to others' pretrial disclosures within 14 days or any objections are waived.

5.) Rule 26.02 begins with an express statement that "proportionality" is the guiding concept in determining the proper scope of discovery. This concept limits the general rule providing for the discovery of any evidence that is relevant to the claim or defense of a party. This gives parties an opportunity to not disclose relevant evidence and hide behind the vagueness of "proportionality."

6.) As in federal court, the parties are required to conduct a "discovery conference." This conference is required to be held 30 days after the date the answer is originally due. The parties must prepare a "discovery conference report."

7.) Rule 37.04 is amended to provide that evidence not disclosed as required by the rules will be excluded, unless the non-disclosure was substantially justified or harmless.

8.) The rule abolishes the information statement, modifies use of the certificate of representation, and creates a "Civil Cover Sheet" that must be filed with any new lawsuit. The Civil Cover Sheet is based on a form available on the court system website. Scheduling information will be submitted as part of the Civil Cover Sheet. Importantly, parties have only ten days to respond to the Plaintiff's Civil Cover Sheet-so the Civil Cover Sheet would appear to be due ten days before a Defendant's Answer is due. While the rule permits the court to wait until 90 days after the date the last Civil Cover Sheet is due (and thus take into account the discovery conference report mentioned above), it also allows it to immediately enter a scheduling order at the point the last Civil Cover Sheet is due. This may give rise to bitter early wranglings over scheduling.

9.) Rule of General Practice 115.04 is amended to provide a process whereby judges can hear civil motions through an informal process involving letters and conference calls.

10.) Rule 1 is also amended to include a statement requiring the courts to consider "proportionality" in the handling of all cases. In a world of diminishing court resources, this could give the courts the opportunity to significantly cut back on the resources devoted to civil cases. -But only time will tell on this point.

These are huge changes. They will alter the way we handle even the simplest cases. I see more convenience for the courts, but little in the way of savings for litigants.

For claims handlers, insurers, and trusts, here's my assessment as to the significance of these changes:

1.) The limitation on pocket service cases-dismissal after one year-will likely result in more matters being filed and not just pocket served.

2.) The use of the civil cover sheet and the requirement of a response within ten days will require that in cases where the plaintiff filed a civil cover sheet that counsel be retained immediately so that a responsive civil cover sheet can be filed within ten days. The service of a complaint will trigger obligations that cannot be easily extended without leave of court. The court may even issue scheduling provisions requested by the Plaintiff before an attorney for the defendant has even been retained.

3.) The amendment of Rule 26.02 to include an express "proportionality" requirement will likely give rise to more discovery disputes. This is particularly true until the courts hand down some appellate cases explaining application of the proportionality factors.

4.) The processing of cases will be more formal and will require a different and somewhat more straight-jacketed workup.

5.) The parties will have more conferences early on to put in place agreements regarding the use of discovery.

These rule changes are the result of the recommendations of the Minnesota Supreme Court's Civil Justice Reform Task Force. The report and recommendation of the Task Force was circulated and the Supreme Court held a hearing on the recommendations before deciding to implement these changes. While the Courts were certainly a big part of the discussion and recommendations that were made, civil practitioners from a wide range of practice areas also participated and provided input on ways to improve the civil justice system to add increases in efficiencies and to resolve disputes more economically. There are some aspects of the rules that could lead to efficiencies, but it would also seem that the rules do add some additional steps to the litigation process.

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