• June 10, 2015

Minnesota Litigator - federal rule changesUpdate (June10, 2015):  New amendments to the court rules take effect on July 1.  A few highlights:

  • There must be “consecutive pagination” of all pages in affidavits and trial exhibits from start to finish.
  • A declaration that a filing was submitted “under penalty of perjury” will suffice rather than notarization for many documents.
  • The rules lay out how “restricted identifiers” (like social security numbers and financial account information) must be handled.

In addition, there are amendments to the public access rules.  The changes were prompted by the increased availability of court filings electronically.  All attorneys need to understand the amendments.

The courts are offering free CLEs on the amendments.  They will take place on June 22, June 24 and July 1 in the metro area, and on other days around the state.

One more thing: an order that took effect on March 1, 2015 authorizes e-fiing and e-service for all appellate cases.  There will be free CLEs on June 12 and June 19 addressing these changes too.

Original post: The Minnesota Supreme Court just adopted amendments to seven sets of court rules: Public Access, Civil Procedure, General Rules of Practice, and four other sets of rules.

Many of the amendments are prompted by the digitization of court filings and records. Some highlights from me follow:

The Public Access Rules

Amendments to the Public Access rules recognize that digital court records will be more accessible to others now. The rule amendments try to strike a balance between accessibility and privacy.

The amendments categorize court filings and decisions according to two things: the type of case and the type of record. Some documents will be available off any computer (even at home sitting in your pajamas); some documents will be accessible only at courthouses (including any courthouse, not just the one where the case was filed); and some documents will be accessible only by the parties.

So, for example, there will be no remote access for documents in certain matters: order for protection, harassment/restraining orders, juvenile CHIPS and juvenile D-16 proceedings. The register of actions (ROA) and public documents for these types of cases will be available only at courthouses.
For certain other cases – e.g., civil commitments – only the register of actions will be available remotely.

At the next level, for family law cases and paternity cases post-adjudication, the register of actions and court-generated documents (like orders and notices) will be available remotely.

The broadest remote access will be available for other civil and criminal cases. We will be able to review the ROA and all public documents for these files remotely. At our offices or after hours at home.

We will need to understand these rules so we know who will be able to see what when we file documents.

The Rules of Civil Procedure and General Rules of Practice

Amendments were also made to the Rules of Civil Procedure and the General Rules of Practice.

One set of amendments deals with “restricted identifiers.” Restricted identifiers are social security numbers, employer identification numbers and financial account numbers.

The amended rules take a three-pronged approach to regulation of restricted identifiers.

First, the amendments discourage the use of restricted identifiers whenever they can be avoided. The advisory committee says that it is rare that restricted identifiers are really needed in filings. Sometimes pleadings must include specific identifiers. But they should be avoided where not required by statute or needed for adjudication. So, for example, a filing could refer to “Wells Fargo Joint Checking” rather than a specific account number.

Second, an amendment emphasizes the existing requirement that restricted identifiers may be submitted only on a Confidential Information Form (Form 11.1) or on Confidential Financial Source Documents (under rule 11.03). We will have to certify when filing that the documents submitted contain no restricted identifiers except as permitted by the rules. If court administrators discover that a document with restricted identifiers is improperly submitted, they may file it with a “temporary non-public status” to allow the filing of a redacted document.

Last, amendments to Rule 11 of the Rules of Civil Procedure say that documents that are wrongly submitted with restricted identifiers may be a basis for rule 11 sanctions. This last provision drew some controversy. The MSBA submitted comments on the proposed rules opposing sanctions based on the submission of restricted identifiers not submitted in a confidential way. (It does not seem likely that accidental submission of restricted identifiers will lead to sanctions, and it seems that the proposed provision is aimed at repetitive and abusive submissions, although, of course, it is never possible to predict how individual judges will react.)

Another amendment will allow the courts to accept documents like affidavits without notarization if they are signed “under penalty of perjury.” This change will allow things like affidavits to be accepted if they are unsworn declarations with this magic language:

“I declare under penalty of perjury that everything I have stated in this document is true and correct.”

The signature, date of signing and county and state where the document was signed would need to be included as well.

This is consistent with a new state statute, which opened the door to unsworn declarations, Minn. Stat. section 358.116.

Yet another amendment will simply require that all documents filed be consecutively numbered. So, for example, an affidavit with exhibits will have to be numbered from beginning to end, running from the first page of the affidavit to the last exhibit page.

The changes will apply to documents filed in support of motions and to trial exhibits.

This will help save time and effort in the district court, as all participants will be able to pinpoint the exact page of a document being considered.

And this change will be especially helpful at the appellate level. Under amendments to the appellate rules adopted last year, appendices are eliminated. Addenda may now be longer (up to 50 pages in addition to the order or judgment at issue). But attorneys will no longer be able to include everything they want to cite to in a long appendix. Judges will be working with digital files. So it will be important to be able to direct them to the exact page.

This proposed amendment will work in sync with an administrative change made by the court recently.

The district courts are now assigning unique numbers to docket entries in the case register (as in the federal courts). So instead of citing to Affidavit of Mary Roe filed on March 18, 2014 at page x, you will be able to cite to a document entry number, for example, Doc. ID # Y at page x. (Or ROA # Y at page x to refer to the Register of Actions. The same thing with a different name.)

These ways of citing will be shorter and more precise. So watch for the numbered docket entries and use them in citing.

All the amended court rules will take effect on July 1, 2015.

 

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