The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. V.S.C.R. 4:5(b)(1).

If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice. V.S.C.R. 4:5(b)(1).

Leave of court is not required for the taking of a deposition by plaintiff if the notice (A) states that the person to be examined is about to go out of the Commonwealth, or is about to go out of the United States, or is bound on a voyage to sea, and will be unavailable for examination unless his deposition is taken before expiration of the period for filing a responsive pleading under Rule 3:8, and (B) sets forth facts to support the statement. The plaintiff’s attorney shall sign the notice, and his signature constitutes a certification by him that to the best of his knowledge, information, and belief the statement and supporting facts are true.

If a party shows that when he was served with notice under this subdivision (b)(2) he was unable through the exercise of diligence to obtain counsel to represent him at the taking of the deposition, the deposition may not be used against him. V.S.C.R. 4:5(b)(2).

The notice to a party deponent may be accompanied by a request made in compliance with Rule 4:9 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 4:9 shall apply to the request. V.S.C.R. 4:5(b)(2).

A party may in his notice name as the deponent a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these Rules. V.S.C.R. 4:5(b)(6).

A deposition of a party, or any witness designated under Rule 4:5(b)(6) to testify on behalf of a party, shall be taken in the county or city in which suit is pending, in an adjacent county or city, at a place upon which the parties agree, or at a place that the court in such suit may, for good cause, designate. Good cause may include the expense or inconvenience of a non-resident party defendant appearing in one of the locations specified in this subsection. The restrictions as to parties set forth in this subdivision (a1)(i) shall not apply where no responsive pleading has been filed or an appearance otherwise made. V.S.C.R. 4:5(a1)(i).

Unless otherwise provided by the law of the jurisdiction where a non-party witness resides, a deposition of a non-party witness shall be taken in the county or city where the non-party witness resides, is employed, or has a principal place of business; at a place upon which the witness and the parties to the litigation agree; or at a place that the court may, for good cause, designate. V.S.C.R. 4:5(a1)(ii).

Depositions sought in Virginia pursuant to a subpoena issued under the authority of a foreign jurisdiction shall be subject to the provisions of the Uniform Interstate Depositions and Discovery Act, Virginia Code 8.01-412.8 through 8.01-412.15. V.S.C.R. 4:5(a1)(iv)(eff 7/1/09).

Within another state, or within a territory or insular possession subject to the dominion of the United States, or in a foreign country, depositions may be taken (1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or, where applicable, the law of the United States, or (2) before a person appointed or commissioned by the court in which the action is pending, and such a person shall have the power by virtue of such appointment or commission to administer any necessary oath and take testimony, or (3) pursuant to a letter rogatory. A commission or letter rogatory shall be issued upon application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A commission or letter rogatory may be addressed “To the Appropriate Authority in (here name the state, territory, or country).” Witnesses may be compelled to appear and testify at depositions taken outside this state by process issued and served in accordance with the law of the jurisdiction where the deposition is taken or, where applicable, the law of the United States. Upon motion, the courts of this State shall issue a commission or letter rogatory requesting the assistance of the courts or authorities of the foreign jurisdiction.

The attendance of witnesses may be compelled by subpoena. V.S.C.R. 4:5(a). For more information regarding subpoenas, See Fairfax County SmartRules guide: SUBPOENAS.

No commission is necessary to take a deposition whether within or without the Commonwealth of Virginia. V.S.C.R. 4:3(c).

If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney’s fees. V.S.C.R. 4:5(g)(1).

If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness because of such failure does not attend, and if another party attends in person or by attorney because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney’s fees. V.S.C.R. 4:5(g)(2).

Within the Commonwealth of Virginia depositions may be taken before any person authorized by law to administer oaths, and if certified by his hand may be received without proof of the signature to such certificate. V.S.C.R. 4:3(a).

In any other State of the United States or within any territory or insular possession subject to the dominion of the United States, depositions may be taken before any officer authorized to take depositions in the jurisdiction wherein the witness may be, or before any commissioner appointed by the Governor of the Commonwealth of Virginia. V.S.C.R. 4:3(b).

In a foreign state or country depositions shall be taken (1) before any American minister plenipotentiary, charge d’affaires, secretary of embassy or legation, consul general, consul, vice-consul, or commercial agent of the United States in a foreign country, or any other representative of the United States therein, including commissioned officers of the armed services of the United States, or (2) before the mayor, or other magistrate of any city, town or corporation in such country, or any notary therein. V.S.C.R. 4:3(d).

Any person before whom a deposition is taken outside the Commonwealth of Virginia shall certify the same with his official seal annexed; and, if he have none, the genuineness of his signature shall be authenticated by some officer of the same state or country, under his official seal, except that no seal shall be required of a commissioned officer of the armed services of the United States, but his signature shall be authenticated by the commanding officer of the military installation or ship to which he is assigned. V.S.C.R. 4:3(e).

There shall be no limit on the number of witnesses whose depositions may be taken by a party except by order of the court for good cause shown. V.S.C.R. 4:6A.

Unless the court orders otherwise, a deposition may be taken by telephone, video conferencing, or teleconferencing. A deposition taken by telephone, video conferencing, or teleconferencing shall be taken before an appropriate officer in the locality where the deponent is present to answer questions propounded to him. V.S.C.R. 4:5(b)(7).

Depositions may be taken by audio-visual means including, but not limited to, videoconferencing and teleconferencing, as authorized by and when taken in compliance with law. V.S.C.R. 4:7A(a). Virginia Supreme Court Rule 4:7A sets forth the requirements for audio visual deposition recording. V.S.C.R. 4:7A.
The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

Use this At A Glance Guide to learn the Georgia Code related to deposition notice in Georgia Superior Court. For more detailed information, please see the SmartRules Deposition Notice Guide for the court where your action is pending.

A deposition may relate to any unprivileged matter relevant to the subject matter of the pending action and relating to a claim or defense of any party. O.C.G.A. 9-11-26(b)(1).

A discovery request is permissible even if the information sought would be inadmissible at trial, as long as the information sought appears reasonably calculated to lead to the discovery of admissible evidence. O.C.G.A. 9-11-26(b)(1).

A party may discover the existence and contents of any insurance agreement under which any person providing insurance might be required to satisfy all or part of any judgment entered in the action, or to indemnify or reimburse for payment of such judgment. O.C.G.A. 9-11-26(b)(2).

A party who has responded to an discovery request with a response that was complete when made has no duty to supplement his response, except if:

1. The discovery request concerns the identity and location of persons having knowledge of discoverable matters;

2. The discovery request concerns the identity of persons likely to be called as experts at trial, the subject matter on which he is expected to testify, and the substance of his testimony;

3. The party later learns that the response was incorrect when made; or

4. The party learns that the statement is no longer true, and his failure to amend the response would amount to a knowing concealment. O.C.G.A. 9-11-26(e)(1); O.C.G.A. 9-11-26(e)(2).

A duty to supplement responses may be imposed by:

1. Order of the court;

2. Agreement of the parties; or

3. New requests for supplementation of prior responses. O.C.G.A. 9-11-26(e)(3).

Unless otherwise ordered by the court, the frequency of use of permissible discovery methods is unlimited. O.C.G.A. 9-11-26(a).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting. ]]> http://blogs.smartrules.com/2009/07/08/deposition-notice-in-georgia-superior-court-%e2%80%93-at-a-glance/feed/ http://blogs.smartrules.com/2009/07/08/motion-for-protective-order-in-virginia-circuit-court-%e2%80%93-at-a-glance/ http://blogs.smartrules.com/2009/07/08/motion-for-protective-order-in-virginia-circuit-court-%e2%80%93-at-a-glance/#comments Wed, 08 Jul 2009 21:07:43 +0000 jmoon http://blogs.smartrules.com/?p=1209

Use this At A Glance Guide to learn the Virginia Supreme Court Rules related to Motion for Protective Order in Virginia Circuit Courts. For more detailed information, please see the SmartRules Motion for Protective Order Guide for the court where your action is pending.

The moving party must show that an order is reasonably necessary to protect the movant from annoyance, embarrassment, oppression or undue burden or expense. V.S.C.R. 4:1(c).

The moving party must show good cause why a protective order is necessary. V.S.C.R. 4:1(c).

A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 4:1(b)(1). The court may specify conditions for the discovery, including allocation of the reasonable costs thereof. V.S.C.R. 4:1(b)(7)(eff 1/1/09).

A motion for protective order must be accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. V.S.C.R. 4:1(c); V.S.C.R. 4:1(b)(8)(eff 1/1/09).

A motion for protective order must be brought in the court where the action is pending, or, on matters relating to a deposition, the court in the city or county where the deposition is to be taken. V.S.C.R. 4:1(c).

Relief available on a motion for protective order includes orders stating that:

The discovery not be had;

The discovery be had, but only upon certain conditions, which may include specifications as to time or place;

The discovery be had only by a different method of discovery than the one sought;

The scope of the discovery is limited to certain matters or that certain areas may not be inquired into;

No one be present except persons authorized by the court;

A sealed deposition may be opened only by order of the court;

A trade secret or other confidential material not be disclosed or may only be disclosed in a designated way; or

The parties file designated material in sealed envelopes only to be opened as specified by the court.

V.S.C.R. 4:1(c).

If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. V.S.C.R. 4:1(c).

The provisions of Rule 4:12(a)(4) apply to the award of expenses incurred in relation to the motion. V.S.C.R. 4:1(c).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting. ]]> http://blogs.smartrules.com/2009/07/08/motion-for-protective-order-in-virginia-circuit-court-%e2%80%93-at-a-glance/feed/ http://blogs.smartrules.com/2009/07/08/amended-answer-in-georgia-superior-court-%e2%80%93-at-a-glance/ http://blogs.smartrules.com/2009/07/08/amended-answer-in-georgia-superior-court-%e2%80%93-at-a-glance/#comments Wed, 08 Jul 2009 20:59:46 +0000 jmoon http://blogs.smartrules.com/?p=1205 Use this At A Glance Guide to learn the Georgia Code related to amended answer in Georgia Superior Court. For more detailed information, please see the SmartRules Amended Answer Guide for the court where your action is pending.

If the parties try, by either express or implied consent, issues that were not raised in the pleadings, those issues will be treated in all respects as if they had been raised in the pleadings. On a proper motion, any party will be permitted to amend the pleadings as necessary so that they raise any such issues and conform to the evidence presented at trial. A party may file such a motion at any time, including after judgment has been entered, but failure to amend the pleadings will not affect the resolution of such issues at trial. O.C.G.A. 9-11-15(b).

If, at trial, a party objects to evidence on the ground that it is not within the issues set out in the pleadings, the court may allow a party to amend the pleadings. The court should freely grant permission to amend the pleadings if:

1. Such amendment will subserve presentation of the merits of the action; and

2. The objecting party fails to show that admission of the evidence will prejudice him in maintaining his action or defense on the merits.

If the court grants permission to amend the pleadings over an objection, the court may grant a continuance to allow the objecting party to prepare to proceed in light of the additional evidence. O.C.G.A. 9-11-15(b).

An amended pleading relates back to the date of the original pleading if the claim or defense asserted in the amended pleading arises from the same conduct, transaction, or occurrence set forth (or attempted to be set forth) in the original pleading. O.C.G.A. 9-11-15(c).

If an amending pleading changes the party against whom a claim is asserted, the amended pleading will relate back if, within the applicable statute of limitations, the party to be brought in by amendment:

1. Received sufficient notice of the action so that he will not be prejudiced in maintaining his defense on the merits; and

2. Knew or should have known that the action would have been brought against him if not for a mistake as to the identity of the proper party.

O.C.G.A. 9-11-15(c).

If a party moves for permission to file a supplemental pleading, after reasonable notice and on such terms as are just a court may permit the party to file a supplemental pleading setting forth transactions, occurrences, or events that have happened since the date of the party’s original pleading, even if the original pleading was defective in stating a claim or defense. The court may require any adverse party to plead in response to the supplemental pleading within a time period set by the court. O.C.G.A. 9-11-15(d).

Although not explicitly stated in the rules, it is established in Georgia case law that if a complaint names multiple defendants, each defendant must file an answer, although multiple defendants may answer jointly.

Unless the trial court orders otherwise, a party is not required to file an answer in response to a cross-claim or counterclaim against the party. Any cross-claim or counterclaim is considered denied automatically. O.C.G.A. 9-11-12(a).

If the complaint or amended complaint is so vague or ambiguous that the defendant cannot reasonably be required to frame a proper answer, the defendant still must file an answer, but also may file a motion for more definite statement pointing out the defects in the complaint and the details desired. If the motion is granted, the plaintiff will have fifteen (15) days from receiving notice of the order granting the motion, or such other time as the trial court orders, to provide any details ordered by the court. If the plaintiff fails to comply within the allotted time, the court may strike the complaint or enter whatever other order the court deems fair. O.C.G.A. 9-11-12(e).

The defendant may move to strike from the complaint or amended complaint any redundant, immaterial, impertinent, or scandalous matter. O.C.G.A. 9-11-12(f).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

Use this At A Glance Guide to learn the Virginia Supreme Court Rules related to amended answer in Virginia Circuit Courts. For more detailed information, please see the SmartRules Amended Answer Guide for the court where your action is pending.

Leave to amend shall be liberally granted in furtherance of the ends of justice. V.S.C.R. 1:8.

A misnomer in any pleading may, on the motion of any party, and on affidavit of the right name, be amended by inserting the right name. An amendment changing the party against whom a claim is asserted, whether to correct a misnomer or otherwise, relates back to the date of the original pleading if (i) the claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading, (ii) within the limitations period prescribed for commencing the action against the party to be brought in by the amendment, that party or its agent received notice of the institution of the action, (iii) that party will not be prejudiced in maintaining a defense on the merits, and (iv) that party knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against that party. Va. Code 8.01-6.

An amendment of a pleading changing or adding a claim or defense against a party relates back to the date of the original pleadings for purposes of the statute of limitations if the court finds (i) the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth in the original pleading, (ii) the amending party was reasonably diligent in asserting the amended claim or defense, and (iii) parties opposing the amendment will not be substantially prejudiced in litigating on the merits as a result of the timing of the amendment. In connection with such an amendment, the trial court may grant a continuance or other relief to protect the parties. This section shall not apply to eminent domain or mechanics’ lien claims or defenses. Va. Code 8.01-6.1

A pleading that states a claim against a party whose trade name or corporate name is substantially similar to the trade name or corporate name of another entity may be amended at any time by inserting the correct party’s name, if such party or its agent had actual notice of the claim prior to the expiration of the statute of limitations for filing the claim. Va. Code 8.01-6.2(A).

In the event that suit is filed against the estate of a decedent, and filed within the applicable statute of limitations, naming the proper name of estate of the deceased and service is effected or attempted on an individual or individuals as executor, administrator or other officers of the estate, such filing tolls the statute of limitations for said claim in the event the executor, administrator or other officers of the estate are unable to legally receive service at the time service was attempted, or defend suit because their authority as executor, administrator or other officer of the estate excludes defending said actions, or their duties as executor, administrator or other officer of the estate had expired at the time of service or during the time of defending said action. Va. Code 8.01-6.2(B)

In any case in which full justice cannot be done, or the whole controversy ended, without the presence of new parties to the suit, the court, by order, may direct the clerk to issue the proper process against such new parties, and, upon the maturing of the case as to them, proceed to make such orders or decrees as would have been proper if the new parties had been made parties at the commencement of the suit. Va. Code 8.01-7

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting. ]]> http://blogs.smartrules.com/2009/07/08/amended-answer-in-virginia-circuit-court-%e2%80%93-at-a-glance/feed/ http://blogs.smartrules.com/2009/07/08/amended-answer-in-florida-circuit-court-%e2%80%93-at-a-glance/ http://blogs.smartrules.com/2009/07/08/amended-answer-in-florida-circuit-court-%e2%80%93-at-a-glance/#comments Wed, 08 Jul 2009 20:10:42 +0000 jmoon http://blogs.smartrules.com/?p=1200

Use this “At A Glance Guide” to learn the Florida Rules of Civil Procedure applicable to amended answer in Florida Circuit Courts. For more detailed information, please see the SmartRules Amended Answer guides for the court where your action is pending.

An answer (or an amended answer) must contain an admission or denial of each averment on which the adverse party relies. If the defendant is without knowledge, the defendant shall so state and this will operate as a denial. Denials must fairly meet the substance of the allegations. Fla. R. Civ. P. 1.110(c).

A defendant may make a general denial to all of the averments, including the court’s jurisdiction. Fla. R. Civ. P. 1.110(c).

An averment that is not denied, except for damages, is deemed admitted. Fla. R. Civ. P. 1.110(e).

An answer must state in “short and plain terms the pleader’s defenses to each claim asserted.” Fla. R. Civ. P. 1.110(c). Each defense other than denials “shall be stated in a separate count or defense when a separation facilitates the clear presentation of the matter set forth.” Fla. R. Civ. P. 1.110(f).

Case law authority holds that a defendant may plead alternative or inconsistent affirmative defenses.

An avoidance or defense must be pled as an affirmative defense. The Code lists common affirmative defenses: accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, and waiver. This list is not exhaustive. Fla. R. Civ. P. 1.110(d).

Except for lack of subject matter jurisdiction, failure to state facts sufficient to constitute a cause of action, and failure to join an indispensable party, affirmative defenses are waived if not pled. Fla. R. Civ. P. 1.140(h).

Affirmative defenses raised in an answer (or amended answer) are deemed denied by plaintiff. Fla. R. Civ. P. 1.110(e).

A verified complaint may be answered in the same manner as a non-verified complaint. Fla. R. Civ. P. 1.110(b).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

A defendant may, at that defendant’s option, plead as a cross-claim any cause of action that such defendant has or may have against one or more other defendants growing out of any matter pled in the complaint. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. V.S.C.R. 3:10(a).

The court in its discretion may order a separate trial of any cause of action asserted in a cross-claim. V.S.C.R. 3:10(d).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

There is no formal requirement for a Case Management Statement, although many judges require them for specific cases. Check with your judge’s clerk at the time the case management conference is scheduled to determine whether a statement should be prepared and, if so, what issues should be addressed.

At a case management conference, the court may:

1. Deal with scheduling of service of motions, pleadings, and other papers;

2. Set a time for trial (assuming a notice of trial has been filed)

3. In complex litigation cases, coordinate progress of the action;

4. Limit, schedule, or expedite discovery;

5. Schedule disclosure of expert witnesses;

6. Pursue settlement possibilities;

7. Require stipulations;

8. Consider referral to magistrate; and

9. Schedule further conferences or pre-trial conferences.   Fla. R. Civ. P. 1.200 (a).

A party that fails to appear at a case management conference is subject to having the court dismiss the action, strike the pleadings, limit witnesses, or take other appropriate action. Fla. R. Civ. P. 1.200 (c).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

The 5th Circuit Court of Appeals has proposed changes to its local rules.  The court offers for public comment four categories of changes:

• Amendments to time deadlines to comply with the proposed December 1, 2009 amendments to the FED. R. APP. P.
• Replacing the word “shall” with “will” to be consistent with the previous linguistic preference in the FED. R. APP. P.
• Modifications to our attorney admissions requirements, (Rule 46.1); and an updated reference to the May 2008, 5th Circuit Judicial Misconduct Rules, in Rule 47.9.
• Addition of rules governing electronic case filing.

Comments must be received by August 10, 2009.  Click here for the full text of the proposals.

Amendments to Federal Rules of Civil Procedure Effective December 1, 2009

Effective December 1, 2009, there will be time computation and other amendments to the Federal Rules of Civil Procedure.  For a full description of the changes, please see the following posts from the SmartRules Blog:

• Computation of Time and Calculating Deadlines: Changes to Federal Rules Effective December 1, 2009
• Non-Time-Computation Amendments to Federal Rules of Civil Procedure Effective December 1, 2009
• Time Calculation Changes to FRCP–Memorandum to USDC Chief Judges
• Changes to FRCP 26 and 56–Report Re Meeting of April 2009

Additional Proposed Amendments to Federal Rules of Civil Procedure Posted

Proposed amendments to the Federal Rules of Appellate, Bankruptcy, Civil and Criminal Procedure, including Civil Rules 26 and 56 have been posted.  The comment period has passed.  For more information please see http://www.uscourts.gov/rules/newrules1.htm.

California Central District Amends Local Civil Rules

The United States District Court for the Central District of California adopted Local Civil Rules 11-3.8, 83-2.3 and 83-2.8, effective April 1, 2009 and Local Civil Rules 8-3 and 73-2.4.1 effective February 16, 2009.  The Central District also posted new Local Civil Rules 73-2.4.1.1 and 73-3 effective February 16, 2009.  The full text of the new and amended rules is available at:  http://www.cacd.uscourts.gov/cacd/notices.nsf/5a76d63503298120882567cf0058ef
b4/014526934e8a1e5a88257558005a3523?OpenDocument.

California Superior Courts–Changes to Local Rules Approved by Judicial Council

The changes to the local rules in the California Superior Courts have been approved by the California Judicial Council.  The amended local rules will be available to the public on www.smartrules.com and the courts’ websites on or before July 1, 2009, and were previously provided to the SmartRules editorial team.  The updated California Superior Court SmartRules Guides are available on www.smartrules.com.

California Superior Court, Sacramento County–Changes to Law and Motion Procedure

Effective Monday, June 29, 2009, all document filing for Law & Motion will be handled at the Downtown Courthouse, 720 9th Street in Room 102, at the Civil customer service counters.  Public service will no longer be available at the Law & Motion customer service counters after this date.

Law & Motion hearings will continue to be held at 800 9th Street in Departments 53 and 54. For a detailed notice of the changes, download the Changes to Law & Motion handout.

Formal changes to the Local Rules are pending. The proposed changes are available by clicking here.

Connecticut State Court Considers Amendments to Practice Book

There was a Public Hearing on Practice Book Revisions being considered by the Rules Committee of the Superior Court on June 1, 2009 at 10:00 am.  Detailed information and actual text to proposed rules are available at http://www.jud.ct.gov/pb.htm.

Florida Southern District Amends Local Civil Rules and Discovery Practices Handbook

Effective April 15, 2009, the United States District Court for the Southern District of Florida amended its local civil rules, including rules 5.1, 7.1, 16.2, 26.1, 87.4, 88.3 and the Discovery Practices Handbook.  The complete text of the amended rules is available at http://www.flsd.uscourts.gov/default.asp?file=adminorders.asp.

Idaho District Court (State Trial Court) Amends Statewide Civil Rules

Effective July 1, 2009, the Idaho Supreme Court will repeal Idaho Rule of Civil Procedure (I.R.C.P.) 28(E), and the adoption of Rules 45(I), 45(I)(1), 45(I)(2), 45(I)(3), 45(I)(4), 45(I)(5) And 45(I)(6), and the amendment of Rule 83(A) .  More information is available at http://www.isc.idaho.gov/rulesamd.htm.

Illinois Northern District Proposes Amendments to Local Rules

The United States District Court for the Northern District of Illinois has proposed amendments to its Civil Local Rules 5.2, Form and Documents Filed, and 83.16, Appearance Forms.  Regarding Rule 5.2, the proposed changes would add a new subsection (b) entitled “Redaction of Transcripts Filed Electronically.”  The subsections following (b) would be renumbered.  For the full text of the proposed revisions please see Proposed Revisions to Rule 5.2.

Regarding Rule 83.16, Appearance Forms, the proposed revisions are to subsection (b), “Who Must File.”  For the full text of the proposed revisions please see Proposed Revisions to Rule 83.16..

Michigan State Court Amends Court Rules

Effective January 1, 2009, Michigan state court amended Rules 2.302, 2.310, 2.313, 2.401, 2.506 and 2.107 of the Michigan Court Rules; and effective May 1, 2009, Rules 2.614 , 2.112 and 2.403.  More information is available at http://courts.michigan.gov/supremecourt/Resources/Administrative/index.htm.

Nevada State Court Amends Rules of Civil Procedure 4 and 54

Effective May 1, 2009, the Nevada Supreme Court entered orders amending Nevada Rules of Civil Procedure 4(d) (previously amended effective December 17, 2008) and 54 (previously amended effective July 8, 2008). For the full text of the amended rules please see:  Order Amending Nevada Rule of Civil Procedure 4(d) and Order Amending Nevada Rule of Civil Procedure 54.

New Mexico State Court Considers Amendments to Subpoena Rules

The New Mexico State Court is considering proposed amendments to Subpoena rules. For more information please see:  http://nmsupremecourt.nmcourts.gov/rules/index.php.

New York Supreme Court –Amendment to Uniform Rule

New York Uniform Rule Section 202.12(l) was amended effective April 13, 2009. The full text of the amended rule is available at:  http://nycourts.gov/rules/trialcourts/202.shtml#12.

Pennsylvania State Court, Allegheny County Amends Local Rules

Effective for the cases published in January 2009 for the May 2009 trial list, Allegheny County amends Local Rules 212.2 and 220.1. More information is available at http://www.alleghenycourts.us/civil/civil_court_rules.asp

Texas Northern District Amends Local Rules

Effective September 1, 2009 unless modified after receipt of public comment, the United States District Court for the Northern District of Texas will amend its local civil and criminal rules.  More information is available at:  http://www.txnd.uscourts.gov/index.html.

Texas Supreme Court Approves Amendments to Local Rules for the Second Court of Appeals, Fax and E-Filing Rules for the 259th District, and E-filing Rules for Chambers County

Approval of Amendments to the Local Rules for the Second Court of Appeals – Effective June 8, 200

Approval of Local Facsimile E-Filing Rules in the 259th District Court of Jones and Shackleford Counties – Effective June 15, 2009; and

Approval of Local E-Filing Rules for the District Courts of Chambers County – Effective June 15, 2009.

Virginia Eastern District Amends ECF Policies and Procedures, Makes Transcripts Available Electronically, Proposes Amendments to Local Rules

The United States District Court for the Eastern District of Virginia amended its Electronic Case Filing Policies and Procedures Manual effective March 1, 2009.  The amended text of the amended Manual is available at http://www.vaed.uscourts.gov/ecf/index.html.  Also effective March 1, 2009, court transcripts that are transcribed for any trial or hearing in an electronic case will be available electronically. To ensure that personal identifiers are not revealed, the Judicial Conference has approved a policy to allow for redaction of personal identifiers.  More information is available at http://www.vaed.uscourts.gov/ecf/index.html.

Additionally, effective May 12, 2009, the Eastern District of Virginia amended Local Civil Rule 80 and Local Criminal Rule 57.3.

Virginia Circuit Court (State Trial Court) Amends Local Rules

Effective July 1, 2009, the Virginia Circuit Court will amend the following Virginia Rules of Court:

Rule 4:5 Depositions Upon Oral Examination;
Rule 4:9 Production by Parties of Documents, Electronically Stored Information, and Things; Entry on Land; for Inspection and Other Purposes; Production at Trial;
Rule 5:7B Petition for a Writ of Actual Innocence; and
Rule 8:3 Contents of Petitions in Certain Proceedings.

Click here for the full text of the amended rules.

Also, please see the SmartRules Guides for Fairfax, Norfolk and Richmond County Circuit Courts.

Timing: 

A party desiring to take the deposition of any person upon oral examination shall serve notice in writing a reasonable time in advance on the other parties. IL Supreme Court R. 206(a).

On motion of any party upon whom the notice is served, the court, for cause shown, may extend or shorten the time. IL Supreme Court R. 206(a).

Unless otherwise agreed by the parties or ordered by the court, depositions shall not be taken on Saturdays, Sundays, or court holidays. IL Supreme Court R. 206(a).

If the evidence deposition of a witness is to be taken within 21 days of trial, a discovery deposition is not permitted unless the parties stipulate otherwise or the court orders otherwise upon notice and motion. IL Supreme Court R. 202.

Unless a shorter period is fixed by the court, the notice shall be served either within or without the State at least 21 days before the date of hearing, in the manner provided for service of summons. IL Supreme Court R. 217(a)(2).

Notice of Deposition Rules:

A party desiring to take the deposition of any person upon oral examination shall serve notice in writing a reasonable time in advance on the other parties. The notice shall state the time and place for taking the deposition; the name and address of each person to be examined, if known, or, if unknown, information sufficient to identify the deponent; and whether the deposition is for purposes of discovery or for use in evidence. IL Supreme Court R. 206(a).

Any party may take the testimony of any party or person by deposition upon oral examination or written questions for the purpose of discovery or for use as evidence in the action. The notice, order, or stipulation to take a deposition shall specify whether the deposition is to be a discovery deposition or an evidence deposition. In the absence of specification a deposition is a discovery deposition only. If both discovery and evidence depositions are desired of the same witness they shall be taken separately, unless the parties stipulate otherwise or the court orders otherwise upon notice and motion. If the evidence deposition of a witness is to be taken within 21 days of trial, a discovery deposition is not permitted unless the parties stipulate otherwise or the court orders otherwise upon notice and motion. IL Supreme Court R. 202.

A party may in the notice and in a subpoena, if required, name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons to testify on its behalf, and may set forth, for each person designated, the matters on which that person will testify. The subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. IL Supreme Court R. 206(a)(1).

If a party serving notice of deposition intends to record the deponent’s testimony by use of an audio-visual recording device, the notice of deposition must so advise all parties to the deposition. If any other party intends to record the testimony of the witness by use of an audio-visual recording device, notice of that intent must likewise be served upon all other parties a reasonable time in advance. Such notices shall contain the name of the recording-device operator. After notice is given that a deposition will be recorded by an audio-visual recording device, any party may make a motion for relief in the form of a protective order under Rule 201. If a hearing is not held prior to the taking of the deposition, the recording shall be made subject to the court’s ruling at a later time. IL Supreme Court R. 206(a)(2).

If the deposition is to be taken pursuant to a subpoena, a copy of the subpoena shall be attached to the notice. IL Supreme Court R. 206(a)(2). 

When a notice of the taking of a deposition has been served, any party may take a deposition under the notice, in which case the party shall pay the fees and charges payable by the party at whose instance a deposition is taken. IL Supreme Court R. 206(b).

If the party serving notice of the taking of a deposition fails to attend or to proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party serving the notice to pay to the other party the amount of the reasonable expenses incurred by him and his attorney in so attending, including reasonable attorney’s fees. IL Supreme Court R. 209(a).

If the party serving notice of the taking of a deposition fails to serve a subpoena or notice, as may be appropriate, requiring the attendance of the deponent and because of that failure the deponent does not attend, and if another party attends in person or by attorney because he expects the deposition of that deponent to be taken, the court may order the party serving the notice to pay to the other party the amount of the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney’s fees. IL Supreme Court R. 209(b).

All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice. IL Supreme Court R. 211(a).

Illinois Supreme Court Rule 217 provides detailed requirements for petitioning the court for permission to depose a party to perpetuate testimony. IL Supreme Court R. 217.

A party desiring to take the deposition of any person upon written questions shall serve them upon the other parties with a notice stating the name and address of the person who is to answer them if known, or, if the name is not known, a general description sufficient to identify him, and the name or descriptive title and address of the officer before whom the deposition is to be taken. Within 14 days thereafter a party so served may likewise serve cross-questions. Within 7 days after being served with cross-questions a party may likewise serve redirect questions. Within 7 days after being served with redirect questions, a party may likewise serve re-cross-questions. IL Supreme Court R. 210(a).

The party at whose instance the deposition is taken shall transmit a copy of the notice and copies of the initial and subsequent questions served to the officer designated in the notice, who shall proceed promptly, in the manner provided by Rules 206(e)(f) and 207, to take the testimony of the deponent in response to the questions and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the questions received by him. No party, attorney, or person interested in the event of the action (unless he is the deponent) shall be present during the taking of the deposition or dictate, write, or draw up any answer to the questions. IL Supreme Court R. 210(b).

The party causing a deposition to be filed shall promptly serve notice thereof on the other parties. IL Supreme Court R. 210(c).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.