AMENDMENTS ARE COMING:
Changes to the Minn. R. Civ. P. and How They Will Affect Civil Cases in Minnesota.
Whether you can believe it or not, July is just around the corner. However, before you start preparing for that big 4th of July party, another milestone for the Minnesota Bar is coming for you sooner than fireworks and hotdogs: the amended Minnesota Rules of Civil Procedure will take effect. Beginning July 1, 2018 amendments to the Minnesota Rules of Civil Procedure, promulgated by the Minnesota Supreme Court in an Order issued on March 13, 2018, will go into practice. Although at the outset, these amendments seem significant, and in ways they are, upon closer review, the changes being made substantially update the Minnesota Rules to align with their Federal counterparts and for the most part will not substantially affect local practice. Nevertheless, Minnesota practitioners should still take note and make adjustments to their cases as necessary. Significant amendments have been made to the following Rules:
RULE 4.05 Service by Mail = Waiving Service of Summons
What we knew as Minn. R. Civ. P. 4.05, “Service by Mail” has been completely overhauled and replaced by a new rule of “Waiving Service of Summons.” Although new, this Rule is not unfamiliar to practitioners as it is modeled to match its federal counterpart in Fed. R. Civ. P. 4(d). In practice, this change will get rid of the traditional “Acknowledgment of Service” form and will be replaced with a “Waiver of Service” form similarly used in federal court. The change clears up the false assumption spurred by the old rule that valid service could be accomplished via U.S. Mail. It further modernizes the Rule, allowing valid service to be accomplished by any form of transmittance, i.e. Fed-Ex, courier, e-mail, or other electronic transmission, as long as the defendant signs a valid Waiver of Service.
RULE 10.01 Caption; Names of Parties
Minn. R. Civ. P. 10.01 has been slightly changed by adding the word “Caption” in the title of the Rule and adding a further requirement that a party named in the caption may only be identified by initials or a pseudonym if authorized by law or court order. This change is the result of an exceeding number of cases requiring discretion of the parties by using initials or by identifying the party as “John Doe” or “Jane Doe.” Use of such anonymous identifiers must be sanctioned by court approval.
RULE 14. THIRD PARTY PRACTICE
Upon first impression, it appears that the entire Minn. R. Civ. P. 14, including subsections 14.01,14.02, and 14.03 have been completely scratched and overhauled by a new Rule with additional subsections. However, the amendments are merely cosmetic as the Rule has simply been reorganized and reformatted to parallel Fed. R. Civ. P. 14. As such, practice under the Rule remains the same.
RULE 23. CLASS ACTIONS
Some additions have been made to the Minnesota Civil Procedure Rule governing class actions as to the distribution of any unclaimed, undistributed residual funds, i.e. what is known as cy pres funds. Now under Minn. R. Civ. P. 23.05(2) and (3), the court shall direct notice to all qualified legal services programs as defined under Minn. Stat. § 480.24 as well as any other potential recipient identified by the parties or the court of any potential distribution of cy pres funds. Once noticed, those programs or potential recipients may apply/ request to receive the remaining funds, whereby the Court will review the requests and decide who should receive the funds based on the relevant factors of the case such as the recommendations of the parties, the nexus between the nature, purpose, and objectives of the class action and the interests of the class members, and the interests of the potential recipients.
RULE 26. DUTY TO DISCLOSE; GENERAL PROVISIONS GOVERNING DISCOVERY
One of the biggest amendments to the Rules are the amendments made to discovery, specifically as to the definition of proportionality, the potential need for the court to allow cost-shifting in discovery, and the ability of a party to serve early Rule 34 Requests following the service of the Complaint. The amendments to Rule 26, as with Rule 56 below, are yet another example in an attempt to “federalize” the Minnesota Rules of Civil Procedure to reflect its federal counterpart. As such, although the amendments seem drastic, they aren’t revolutionary. For instance, although the entire subsection of Minn. R. Civ. P. 26.02(b) Scope and Limits has been replaced, its amendment adopts Fed. R. Civ. P. 26(b)’s wording in an effort to trim down the factors of proportionality as it applies to all discovery in a case. Further, amendments to Minn. R. Civ. P. 26.03 adopts the change in Fed. R. Civ. P. 26(c) providing that the court may order cost-shifting of discovery where appropriate when it comes to proportionality concerns. A new Minn. R. Civ. P. 26.04 has been added to reflect Fed. R. Civ. P. 26(d) allowing a party to serve early requests for production of documents under Rule 34 beginning 21 days after service of the Summons and Complaint. Similar to Fed. R. Civ. P. 26(d), early Rule 34 Requests are not deemed to be served on a party for purposes of calculating the deadline to respond until the parties have conferred and prepared a discovery plan until Minn. R. Civ. P. 26.06(c), a/k/a a 26(f) Conference in federal court. Finally, Minn. R. Civ. P. 26.06(a)(3) has added the requirement that parties discuss issues and concerns of the preservation of electronic evidence along with the preferred form of production of electronic evidence, in every discovery conference during the creation of a discovery plan.
RULE 34. PRODUCTION OF DOCUMENTS, ELECTRONICALLY STORED INFORMATION, AND THINGS, ETC.
Several of the changes made to Minn. R. Civ. P. 34 reflect the amendments made to Minn. R. Civ. P. 26, such as referring to the new definition of proportionality in Minn. R. Civ. P. 26.02. See Minn. R. Civ. P. 34.01. Or in reference to the early Rule 34 Requests allowed by Minn. R. Civ. P. 26.04. See Minn. R. Civ. P. 34.02(c)(1). However, several other significant changes have been made to Rule 34, again in an effort to update the rules to parallel their federal counterparts. The most significant amendments are to Minn. R. Civ. P. 34.02(b) which now requires that a request be set forth “with reasonable particularity” of “each item or category of items” to be inspected and to Minn. R. Civ. P. 34.02(c)(3) which now requires that when a party asserts an objection to production of a document, they further specify the grounds for objection and whether or not the document is being withheld based on that objection, or even disclosed not withholding the objection. Additionally, Minn. R. Civ. P. 34.03(a) is a new section which establishes that Rule 34 requests may be enforced against nonparties under a Rule 45 subpoena.
RULE 37. FAILURE TO MAKE DISCLOSURES OR COOPERATE IN DISCOVERY: SANCTIONS
The most notable amendment to Minn. R. Civ. P. 37 is the completely revamped Minn. R. Civ. P. 37.05 which lays out the standard for sanctions when a party fails to preserve electronically stored information that should have been preserved and it cannot be restored or replaced through additional discovery. To sanction a party for this failure, a court must find that the failure to preserve the electronic discovery prejudices another party from the loss of the information and may order measures not greater than necessary to cure the prejudice. Further, if the court finds that the party acted with intent to deprive another of the information’s use in the litigation it may even go so far as instruct the jury that it may, or even must, presume that the information was unfavorable or even dismiss the case entirely or enter default judgment.
RULE 56. SUMMARY JUDGMENT
Although the face of Rule 56 has changed drastically with the amendments completely deleting parts .01-.07 as they are currently written, and replacing them with new sections while also adding a new subpart .08, the amendments are not intended to substantially change the practice of summary judgment motions under the Rule. Rather the changes made to Rule 56 are meant to update the Rule to conform with that of its federal counterpart. For example, where current Minn. R. Civ. P. 56.01 and 56.02 distinguished between summary judgment sought by the “Claimant” and “Defending Party,” new 56.01 lays out the summary judgment standard for both under the same heading as Fed. R. Civ. P. 56(a) “Motion for Summary Judgment or Partial Summary Judgment” does. New Minn. R. Civ. P. 56.02 similarly now matches Fed. R. Civ. P. 56(b) with the heading “Time to File a Motion.” New subsections 56.03, 56.04, 56.05, 56.06, and 56.07 follow suit and correspond with Fed. R. Civ. P. 56(c), 56(d), 56(e), 56(f), and 56(g). New Minn. R. Civ. P. 56.08 is merely an addition to conform with Fed. R. Civ. P. 56(h) which sets out the penalty for an Affidavit or Declaration Submitted in Bad Faith.
To ensure that the revamp of the Rule is not taken as an upset to Minnesota precedent on the summary judgment standard, the Minnesota Supreme Court specifically kept Minnesota’s summary judgment standard language of “no genuine issue as to any material fact” rather than the federal standard language of “no genuine dispute as to any material fact.” See Minn. R. Civ. P. 56.01; see also, Fed. R. Civ. P. 56(a). Thus, although the Rule looks quite different, summary judgment motions made under the rule should relatively be the same.
RULE 63.02 Interest or Bias – i.e. Disqualification of Judges
Minn. R. Civ. P. 63.02 setting the judicial-disqualification standard has been updated to parallel the standard consistently used in Minnesota case law as well as in the Rules of Criminal Procedure and The Code of Judicial Conduct. Under old Minn. R. Civ. P. 63.02 a judge should be disqualified if “that judge is interested in [a case’s] determination or if that judge might be excluded for bias from acting therein as a juror.” The amended Rule now states that a judge may not “sit in any case if disqualified under the Code of Judicial Conduct.” The Minn. Code of Jud. Conduct 2.11(A) states that a judge is disqualified from presiding over any proceeding in which the judge’s impartiality might reasonably be questioned.” Thus, amended 63.02 follows an appearance of bias standard upheld by Minnesota case law. See Torxel v. State, 875 N.W.2d 302, 314 (Minn. 2016); Powell v. Anderson, 660 N.W.2d 107, 114-15 (Minn. 2003).
Which Cases are Affected by the Amended Rules?
Generally, the amended rules shall apply to all cases currently pending in state court on July 1, 2018 as well as all cases filed on or after July 1, 2018. Nevertheless, the Supreme Court has carved out an exception for current pending cases as amendments to Rules 26 (scope of discovery), 34 (production of documents), 37(sanctions as to electronic discovery), and 63(judicial disqualification) are concerned. The amendments to these rules will only apply to actions commenced on or after July 1, 2018, not to actions currently pending. However, a district court may direct the parties in a pending case to follow the new amendments to Rule 26(scope of discovery), 34(production of documents), and 37(sanctions as to electronic discovery), should the court choose. As such, parties should make sure to check in with their district court/judge/clerk to ensure they are in compliance with the correct form of the Rule.
Additional Updates on the Horizon:
One amendment still being considered by the Minnesota Supreme Court, and arguably the amendment that would most effect daily Minnesota practice, is that of changing the system of counting days for deadlines. The proposal is that the Minnesota Rules of Civil Procedure adopt the timing deadlines used by the federal court which is based on a 7, 14, 21, and 28-day system. Currently, Minnesota’s timing deadlines function on a 5, 10, and 20- day system. This proposal however, has been referred to the Advisory Committees for the General Rules of Practice, the Rules of Criminal Procedure, and the Rules of Appellate Procedure for consideration, as the Court wishes for any change to the timing deadlines to be uniform across Minnesota state courts in all types of cases.