• October 9, 2012

[This post is by New Minnesota Litigator Contributor, Mike Unger. His very own byline is coming soon!]

The winds of change are blowing this early October, and they threaten more than to remove the beautiful fall color we now enjoy.  The Minnesota Supreme Court has scheduled a hearing on proposed changes to the Rules of Civil Procedure and the Rules of General Practice that have been recommended by the Court’s Civil Justice Reform Taskforce.  The stated purpose of the task force was develop recommendations to enhance the more efficient and effective processing of civil cases.  Some of the recommendations seem to have the potential for significant changes in Minnesota’s pretrial practices.  All should take the time to review the changes and consider submitting comments for consideration by the Court.  The Court has set an extended deadline of October 22 for submission of comments or requests to appear at the hearing.  The hearing is on October 30.

There are two recommendations that I find to be of particular concern and plan to comment upon:  changing Minnesota’s “hip pocket filing” practice, and limiting the scope of discovery by imposing a new “proportionality” requirement.

In my view, these proposed changes threaten to clutter the court’s docket, increase the cost of litigation, restrict practitioner’s discretion in litigation, and further hamper the accessibility of the civil justice system to persons of limited means.

Minnesota is one of few states to continue our long practice of “hip pocket filing” in which a law suit may be commenced by service and the litigation conducted without every filing the case in court.  The Court is considering amending Rule 5.04 to provide that all such cases are dismissed if not filed within a year.   I have handled a number of matters in this way over the years.   While I am usually representing the plaintiff, keep in mind that the defendant is always free to file the case and trigger the typical case management and deadlines that filing will cause.  The fact that they often don’t, suggests that both sides can often find this option to be a good one.  When the parties agree upon discovery exchanges and obligations, typically the matters can be resolved without ever burdening the courts.  Both parties often like the privacy and flexibility that this system affords.  After all, any claim can be resolved privately without any litigation, so this approach offers one more, slightly less drastic step along the path of dispute resolution.  The parties may benefit from the involvement of lawyers, the exchange of discovery, and can handle the resolution of the lawsuit following the norms of the rules of civil procedure.

These cases pose no burden on the courts and each party often relishes the opportunity for dispute resolution that does not require creation of a permanent and public record.  The proposed amendment’s  “grace period” of one year is arguably a concession to the benefits of this practice.  The problem is that one year is a totally artificial time frame and may bear no relationship to the nature of the underlying issues in the case.  Many cases I have handled involving serious personal injury, for example, may take a number of years before healing or physical or cognitive development has matured enough to allow a full and fair evaluation of the future effects of an injury.  If the parties and the lawyers agree to pursue the litigation off the court’s radar, where is the harm in that?  Filing the case only means imposition of deadline and filing requirements and fees which may add nothing to eventual resolution of the case and only tax the already limited resources of the courts.   Since limits on the court’s resources always seem to result in civil litigation taking a back seat in court management, it is ironic that this proposal seeks to limit one of the best alternatives available to civil litigants for resolution of disputes without delay caused by the court’s dockets.

The second proposed change is the scope of discovery.  Currently Minnesota and Federal Rules articulate the same standard:  “Parties may obtain discovery regarding any matter, not privileged, that is relevant to a claim or defense of any party …”.   This standard is a slightly narrower one than prevailed for many years prior to the year 2000 (or 2006 in the case of Minnesota), namely discovery of non-privileged matters “relevant to the subject matter of the litigation”.  The new proposal would cause the Minnesota rule to depart from the language of the Federal rule, eliminating the value of the substantial federal jurisprudence on the scope of discovery.  Under the proposed amendment, the scope of discovery in Rule 26.02 would be described as:

(b) Scope and Limits. Discovery must be limited to matters that would enable a party to prove or disprove a claim or defense or to impeach a witness and must comport with the factors of proportionality in rule 1, including the importance of the proposed discovery in resolving the issues, total costs and burdens of discovery compared to the amount in controversy, and total costs and burdens of discovery compared to the resources of each party.  Subject to these limitations, parties may obtain discovery regarding any matter, not privileged, that is relevant to a claim or defense of any party ….

While the idea of proportionality is certainly the legal equivalent of “motherhood and apple pie,” the notion is already recognized in the rules and the courts are now empowered to use their discretion to limit intrusive discovery they deem to be disproportionate when a party wishes to object on this basis.  What then is accomplished by moving this consideration up “front and center” as a restriction on the very scope of discovery?  The practical effect will be to prompt the “proportionality” dispute to be raised immediately in nearly every discovery exchange.  The burden is placed upon the discovering party to “prove” proportionality, rather than the current practice of requiring the party objecting to raise the issue and make a case for the request being burdensome.  The amendment could trigger a shift in attitude and approach to discovery in civil cases.  At the very least, it will unleash a cottage industry of litigation over the degree to which notions of “proportionality” should limit discovery.  No longer will the guiding spirit of discovery be unearthing the truth.  Rather, this amendment builds in a kind of “show me” skepticism about the use of the discovery process and implies that the right to discovery should be rationed based upon the monetary value of the claim alone.  Perhaps there are abuses of discovery process now, but the solution should be more backbone to use existing tools to respond to abuses, not to change the whole approach to discovery and make smaller cases a kind of “second class” citizen in the world of civil justice.

A link to the proposal can be found here.


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