Rule changes designed to improve the efficiency and cost-effectiveness of civil case processing in Minnesota will soon take effect, with implications for filing, discovery, motion practice and case management, among other issues, in Minnesota civil litigation.
On July 1, 2013, several significant changes take place in how the Minnesota courts handle civil litigation. These changes will have some impact on all civil litigation but will directly affect other than family civil cases most dramatically.
The changes to the Rules of Civil Procedure and General Rules of Practice are designed to make the district courts more efficient and accessible by reducing pretrial cost and delay. The rule amendments are grounded in the notion that cases are not created equal and discovery and judicial management should be proportionate to the needs of the particular case.
The new rules take effect on July 1, 2013, and apply to pending actions as well as those filed after the effective date. There are two exceptions to this effective date. The changes relating to Rule 26 apply only to cases commenced after July 1, 2013 (although courts may order that they be applied to actions filed earlier). Courts are likely to order that the expert disclosure and trial disclosure requirements be applied to pending cases where expert discovery or trial submissions have not been accomplished under the old rules. The other modification to the July 1 effective date is that no dismissals under Rule 5 will occur before July 1, 2014.
The final order amending the rules that will take effect on July 1 was entered on May 8, 2013, and is available on the Minnesota courts’ website.1 [The text of the order is also reproduced in this magazine at page 38. Ed.] The court initially adopted these rules by order dated February 4, 2013, and issued a February 12 order slightly modifying the rules. The May 8 order, however, contains all of the changes and is the only order needed for understanding the July 1 changes.2
Impetus for Change
The rules amendments flow from the work and recommendations of the Minnesota Supreme Court Civil Justice Reform Task Force. Chief Justice Gildea established the Task Force in November 2010, with a broad, essentially unbounded charge to review “civil justice reform initiatives undertaken in other jurisdictions and recommend to the court changes that will facilitate more cost-effective and efficient case processing.” The Task Force was made up of experienced leaders in the courts, bar, professional associations, business, the public sector, court administration, and academia. In addition to the diversity of practice settings, Task Force members haled from all corners of Minnesota and represented a wide variety of constituents, including MSBA, Minnesota Association for Justice, Minnesota Defense Lawyers Association, American Board of Trial Counsel, Legal Aid, and city and county attorneys. The Task Force met eight times in 2011 and members served on one of three subcommittees: Court Rules, Differentiated Case Management, and Specialty Courts.
Discussions were robust, but Task Force members were united in identifying the primary challenge facing our civil justice system—excessive cost and delay that affect administrative efficiency and make the courts less accessible. Fundamentally, the Task Force was concerned that the civil litigation process is too cumbersome, too slow, and too expensive with the result that too many cases are resolved outside of the civil justice system. Other cases settle not based on their merits but due to the cost of the litigation. Discovery, in particular, has become a war of attrition. Despite differences in their practice areas, clients, and roles within the civil justice system, Task Force members agreed that discovery must be reformed, courts must be in a position to effectively manage cases, and the one-size-fits-all approach does not work for parties or the courts. These fundamental principles are reflected in the Task Force’s various recommendations, many of which are embodied in the amended rules.
Major Rule Changes
The important rules changes fall into several categories as follows:
- Requirement for filing actions within one year;
- Adoption of automatic disclosures;
- Requirement of a discovery conference of counsel and discovery plan in every case (except those excluded from the operation of the rule);
- Modified case scheduling process;
- New expedited motion process;
- A new rule on managing complex cases; and
- A pilot project for expedited case management in the 1st and 6th Districts.
The rules make two changes relating to proportionality. The first is to add a paragraph to Rule 1 that explicitly requires the court and parties to consider the amount in controversy and the complexity and importance of the issues in making decisions regarding the case. The placement of this provision in Rule 1 makes it clear that proportionality is not required only in discovery, but in the wide variety of decisions that affect the court process and impact the costs incurred by the parties. It might apply to briefing schedules, scheduling of cases, whether cases are consolidated, whether a special master is appointed, or virtually any issue that affects the managerial decisions judges and parties make in handling the case. In addition, the existing provision relating to proportionality in the discovery rules is moved to a more prominent place in Rule 26.02(b). The need for proportionality in discovery was one of the most important conclusions of the Task Force—it simply makes no sense to spend more money on discovery in a case than is in dispute between the parties! These rules are intended to make that a rarer occurrence.
Filing of Actions
Rule 5.04 is amended to require that any case be filed with the court within one year after its commencement against any party, unless the parties stipulate to extend the filing period. This rule does not change the rule for commencement of actions—commencement is still accomplished by service and filing is not required at that time. But within a year after commencement, the action must be filed or it will be deemed dismissed. Dismissal under the rule is with prejudice. The goal of this rule is not to create more dismissals of actions, but to require that they be filed and placed under court management and scheduling within the first year.
Dismissal with prejudice occurs by operation of the rule—the court doesn’t act on it and nothing has to be filed to obtain the dismissal. Passage of a year from commencement against the first party without filing would create a dismissal; it would essentially create an “estoppel by rule,” much like the mandatory counterclaim provision of Minn. R. Civ. P. 13. If a subsequent attempt were made to litigate the issue, either in another action or by the belated filing of the original action, the rule would create a bar to the assertion of the claims in the prior case. The rule does not discuss whether relief from the dismissal would be available, but Rule 60 might be available to allow relief from the dismissal if the criteria of Rule 60 could be met. The most likely basis under Rule 60 would be “excusable neglect,” and the parties seeking to proceed with the case would need to establish both neglect (relatively easy to do) and excuse (perhaps not as easily established). Counsel should not rely on this life-ring, however—Rule 60 allows for relief from an “order or judgment,” neither of which would arguably exist for a dismissal by operation of Rule 5.04.
Counsel should understand that the rule provides for dismissal of the action, not merely the complaint. This likely means that counterclaims, cross-claims, and third-party claims would all be dismissed. And all that will be necessary to prevent that is for any party to file any pleading with the court, so it should not be at all Draconian.
The new rules adopt required (automatic) disclosures in most of the state court proceedings, using the federal rules as the model for drafting the state counterparts. The federal courts adopted automatic disclosures in 1993; they have worked well, and many Minnesota litigators are familiar with their operation. The Task Force believes it is an opportunity for cost-saving and expediting the resolution of cases. Disclosures are briefly categorized as initial disclosures,3 expert disclosures,4 and pretrial disclosures.5
Initial disclosures are due 60 days from the original due date for an answer (unless the parties stipulate to a different date or the court orders it) and are intended to obviate traditional discovery on the matters subject to disclosure. Like discovery requests and responses under the current rules, disclosures are served but may not be filed with the court unless ordered. Discovery is stayed until the parties can convene and agree on a discovery plan. Initial disclosure requires the identification of the name, address and telephone number of individuals “likely to have discoverable information” along with a description of that information, a copy or description of documents that the party may use to support its claims, a computation of each category of damages, and production for copying of any insurance agreement applicable in the case.
Expert disclosure is categorized by two types of experts: experts who must provide a written report and those who do not need to do so. Reports are required from a witness who is retained or specially employed to provide expert testimony or of an employee whose duties include the regular provision of expert testimony.
The amendments also include amendment of Rule 37 to provide for sanctions for failure to make required disclosures. If the experience in federal court is any indicator, preclusion of evidence for failure to disclose it will become an increasingly important sanction in Minnesota practice. It is logically connected to the failure to make disclosures where a party fails to disclose evidence and later wants to offer it at trial. Of course, failure to disclose evidence that is unfavorable to the party is a different matter, and preclusion is not a meaningful sanction against the party that doesn’t want the evidence to be received in any event.
Several types of cases are exempted from disclosures under Rule 26.01.6 With the exception of family court actions (which are excluded for other reasons) the majority of the types of cases exempted from disclosure are cases where discovery is either not available or would rarely be encountered. The Task Force concluded that it makes no sense to require disclosures in cases where the disclosures simply create additional burdens rather than replacing later discovery with earlier disclosure.
The requirement of a discovery conference is integral to the scheduling process under the rules, but is important in its own right. In every case that is subject to disclosure (i.e., in civil cases not specifically exempted by Rule 26.01(a)(2)) parties or counsel are required to hold a discovery conference within 30 days of the initial due date for an answer (i.e., within 50 days after commencement of the case). The conference is intended to be a meaningful planning session to discuss the discovery needs of the case, having in mind the proportionality requirements of the rules, and the framing of a discovery plan that will govern the case. Rule 26.04 defers any traditional discovery until after that conference has occurred and a plan developed.
The parties may request a discovery conference with the court (once an action has been filed, of course) and the court can order one in any case, but the bare minimum will be a discovery conference and discovery plan from the parties. The rules specifically require discussion of the timing and form of disclosures; what discovery may be required; issues relating to electronic discovery and expected privilege claims; what limitations should be placed on discovery; and what, if any, need may exist for protective order relief.
Civil Cover Sheet
The rules replace, for most cases, the former Certificate of Representation and Parties with a new civil cover sheet. A form is available on the Minnesota courts website.7 It is required in all cases other than family cases, except those exempted from the case-processing requirements in existing Rule 111.01 of the General Rules of Practice. The due date of the civil cover sheet is important, as it is the anchor for the timing requirements of the court’s scheduling order. Rule 111.03(a) requires that a scheduling order not be entered until the last civil cover sheet is due and requires that it be entered within 90 days of the filing of the action. The new rule moves the due date for this filing information earlier, and for the parties not filing the action, requires that a supplemental civil cover sheet (if they intend to file one) be filed within ten days of the filing party’s due date.
New Expedited Motion Practice
By implementing the 2013 amendments, the supreme court creates a new expedited motion procedure in Rule 115.04(d) of the General Rules of Practice. That procedure allows the moving party on any nondispositive motion to invoke the expedited process by notice to the court and all parties, coupled with a contact to the appropriate court administrative or staff person to schedule a telephone conference with the court. The motion is then submitted by very short filings by both sides. The process is intended to be informal, and courts are encouraged to hold these telephone conferences promptly. The rule specifies that the telephone conference is not recorded and in many cases we expect the court’s rulings will be in the form of a direction to the parties that may or may not be embodied in a written order. The court can decide that the motion should proceed by formal briefing and hearing, and the party opposing a motion may suggest that.
This procedure is in use by many judges for discovery disputes and other nondispositive motions where a substantial record is not necessary (or is already available to the court). It is premised on the submission of short submissions from the parties, so may not be well-suited to some nondispositive motions that are still substantive in form, such as motions in limine challenging numerous categories of evidence. The court may decide, either before the telephone conference or upon hearing the matter by telephone, that formal briefing and hearing are appropriate.
New Complex Case Process
The Task Force recommended an entire new process for managing complex cases. It is set forth in Rule 146 of the General Rules of Practice and identifies several categories of cases that are provisionally subject to the rule. The rule also requires parties to agree on inclusion of other cases by filing the complex case program election form.8 The parties may also move to remove a case from the complex case program.
One of the hallmarks of complex case designation will be the assignment of the case to a single judge to hear all aspects of the case. This is a standard procedure in many judicial districts, especially for complex cases, but the rule formalizes this as the standard practice for all cases within the complex case program. It also specifies that the assignment of a judge to the complex case should consider the needs of the court, the ability, interest and training of the judge, including experience handling complex cases, and the judge’s willingness to participate in educational programs on case management. This assignment process is not intended to create a “complex case court,” but should affect the judicial assignment—implementing the Task Force’s assessment that parties are entitled to have relatively experienced judges who have received some training in complex-case-management issues assigned to handle complex cases. This assignment process should help steer complex cases requiring extensive management to judges who are both interested in doing that and have some experience managing civil cases. The rules require a mandatory case-management conference, issuance of a case-management order and scheduling order (either as one or two orders), and establishment of a firm trial date. Beyond that, complex case designation is left to the discretion and judgment of the assigned judge.
Expedited Litigation Pilot Project
The court’s May 8 order also authorizes the commencement of an expedited litigation track pilot project in the 1st and 6th districts (Dakota County and St. Louis County). The order specifies that the state court administrator will evaluate the pilot project’s success after 12 months of operation and thereafter, and the pilot project should continue until further order of the court. The court established special rules for the pilot project expedited litigation track (“ELT”) that specify how the ELT is intended to operate. It will apply to civil cases of certain types.9 Parties are allowed to agree to be governed by the ELT rules by filing ELT election forms. Parties also can move to be excluded from ELT if they feel their case does not fit the ELT model. The ELT rules modify the automatic disclosure requirements and accelerate (generally) the case-management conference. Other hallmarks of the rules are limitations on discovery and a limitation of depositions to the parties—nonparty depositions are allowed only to preserve trial testimony. The intention of the ELT is to set an early trial date and to have that trial date be for a “date certain” (date certain in this context would include a week-certain setting for some cases). The goal, however, would be to have that date be the actual trial date unless the date is settled in a vast majority of the cases.
Other Task Force Recommendations
The Task Force was not focused on rule amendments as the only, or even the primary, means of improving the delivery of justice in civil cases. Several of its recommendations were directed to creating better guidance to attorneys and judges on how civil cases can best be managed to improve the quality of justice and the parties’ experience with it. The Task Force believes that this guidance should also extend to making case-management training available to judges handling civil cases.
One of the most important recommendations of the Task Force can’t be accomplished by adopting a rule—it will require commitment and thousands of administrative decisions: The courts should fundamentally change case assignment to make it highly likely that a case assignment on a specified day or week will in fact result in a trial at that time (unless the case has been resolved.) A certain trial setting—and sooner rather than later—is probably the single most desired feature of an improved system.
The 2013 amendments to the civil and general rules will have a lasting impact on how civil cases are handled in Minnesota. The Task Force has confidence that these rules and related recommendations can be the catalyst to broader changes that will make the civil litigation process an even more effective means of resolving disputes quickly, inexpensively, and fairly.
The Hon. Louise Dovre Bjorkman is a judge on the Minnesota Court of Appeals and chaired the Minnesota Supreme Court’s Civil Justice Reform Task Force.
David F. Herr is a partner at Maslon Edelman Borman & Brand, LLP, and chaired the Rules Subcommittee of the Civil Justice Reform Task Force.
1 The May 8, 2013, order and appended rules are available at: http://tinyurl.com/csnvcun
2 The May 8 order deleted a provision in the previously adopted rule that treated medical malpractice cases differently from other civil cases and added an explicit provision in Minn. R. Civ. P. 26.04 to stay traditional discovery until the parties have a discovery conference and prepare a discovery plan.
3 See Minn. R. Civ. P. 26.01(a).
4 See Minn. R. Civ. P. 26.01(b).
5 See Minn. R. Civ. P. 26.01(c).
6 This list is set forth in Minn. R. Civ. P. 26.01(a)(2).
7 The civil cover sheet can be found at: http://tinyurl.com/dxxhzye
8 The complex case program election form can be found at: http://tinyurl.com/ct26vjs
9 The included cases in the 6th District/St. Louis County are all of case types Consumer Credit Contract, Other Contract, Personal Injury, and Other Civil; for the 1st District/Dakota County, the included cases are of the same categories, but only one-half of the cases—only those randomly assigned an even file number or in some other way will be randomly assigned to the ELT.