WSR 16-01-022

RULES OF COURT

[December 2, 2015]

The District and Municipal Court Judges' Association, having recommended the Suggested Amendments to CRLJ 26—Discovery, CRLJ 56—Summary Judgment, and the Court having approved the suggested amendments for publication;

Now, therefore, it is hereby

(a) That pursuant to the provisions of GR 9(g), the suggested amendments as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites in January 2016.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2016. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 2nd day of December, 2015.

 

A. Name of Proponent: District & Municipal Courts Judges Association

B. Spokesperson: Judge David Steiner, President DMCJA

C. Purpose: CRLJ 26 governs civil discovery in courts of limited jurisdiction. Subsection (g), pertaining to time for discovery, provides:

Time for Discovery. Twenty-one days after the service of the summons and complaint, or counterclaim, or cross complaint, the served party may demand the discovery set forth in sections (a) - (d) of this rule, or request additional discovery pursuant to section (e) of this rule. Unless agreed by the parties and with the permission of the court, all discovery shall be completed within 60 days of the demand, or 90 days of service of the summons and complaint, or counterclaim, or cross complaint, whichever is longer.

Courts of limited jurisdiction typically allow for more limited civil discovery than superior courts, as indicated by a comparison between the current CR 26 and CRLJ 26. However, CRLJ 26(g) limits the discovery time frame to a 60 or 90 day period that is inconsistent with the type of cases that are now filed in district courts. The current rule was implemented during a time when the monetary civil jurisdictional limits of district court were much lower. With the increase in district court jurisdiction to $75,000 (and perhaps more in the future), the Committee recommends that the time limits for civil discovery be removed. The revised subsection would read:

(g) Time for Discovery. Twenty-one days after the service of the summons and complaint, or counterclaim, or cross complaint, the served party may demand the discovery set forth in sections (a) - (d) of this rule, or request additional discovery pursuant to section (e) of this rule. Unless agreed by the parties and with the permission of the court, all discovery shall be completed within 60 days of the demand, or 90 days of service of the summons and complaint, or counterclaim, or cross complaint, whichever is longer.

This revision is advisable for several reasons. First, the 60 or 90 day time limit is inconsistent with the discovery processes that are currently allowed under CRLJ 26. CRLJ 26 provides for discovery to commence 21 days after service of the summons and complaint. Generally, paper discovery (interrogatories, requests for production) is served initially. The responding party then has 30 days to respond. After review, the serving party may then take depositions, and/or serve requests for admission. When the jurisdictional limits were lower, depositions were rare, but now it is standard practice to take depositions in district court civil cases. The current rule makes scheduling depositions very problematic as it is unlikely that the authorized three depositions per party can occur within the time frame the rule imposes. As a result, the parties must seek a joint order from the court in almost every case.

With the increased complexity of district court cases, adverse parties (many of whom are unrepresented), should properly have additional time to seek counsel. Both parties need more time to respond to and evaluate discovery. Both parties need more time to evaluate their settlement posture and to focus any discovery motions. Removal of the time limitations will improve court efficiency by requiring motions only where the parties are seeking to expand the discovery limitations (three depositions, 15 interrogatories, etc.), rather than the time constraints. Finally, removal of the 60/90 day limitation is more consistent with the myriad of court calendaring processes that are found throughout the different district courts in Washington.

Removal of the discovery time limitations will allow parties to file mainline civil cases in district court, and to take advantage of the limited discovery processes, six person juries, and final results that the district court process offers. Because of these reasons, the DMCJA recommends that CRLJ 26(g) be amended to remove the 60 and 90 day limitations on discovery. The amended rule retains the other limits on discovery within courts of limited jurisdiction, and allows for improved efficiency and flexibility in the handling of civil matters within those courts.

D. Hearing: A hearing is not requested.

E. Expedited Consideration: Expedited consideration is not requested.

Proposed Amendment

Discovery in courts of limited jurisdiction shall be permitted as follows:

(a) Specification of Damages. A party may demand a specification of damages under RCW 4.28.360.

(b) Interrogatories and Requests for Production.

(1) The following interrogatories may be submitted by any party:

(A) State the amount of general damages being claimed.

(B) State each item of special damages being claimed and the amount thereof.

(C) List the name, address and telephone number of each person having any knowledge of facts regarding liability.

(D) List the name, address and telephone number of each person having any knowledge of facts regarding the damages claimed.

(E) List the name, address and telephone number of each expert you intend to call as a witness at trial. For each expert, state the subject matter on which the expert is expected to testify. State the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

(2) In addition to section (b)(1), any party may serve upon any other party not more than two sets of written interrogatories containing not more than 20 questions per set without prior permission of the court. Separate sections, paragraphs or categories contained within one interrogatory shall be considered separate questions for the purpose of this rule. The interrogatories shall conform to the provisions of CR 33.

(3) The following requests for production may be submitted by any party:

(A) Produce a copy of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of any judgment which may be entered in this action, or to indemnify or reimburse the payments made to satisfy the judgment.

(B) Produce a copy of any agreement, contract or other document upon which this claim is being made.

(C) Produce a copy of any bill or estimate for items for which special damage is being claimed.

(4) In addition to section (b)(3), any party may submit to any other party a request for production of up to five separate sets of groups of documents or things without prior permission of the court. The requests for production shall conform to the provisions of CR 34.

(c) Depositions.

(1) A party may take the deposition of any other party, unless the court orders otherwise.

(2) Each party may take the deposition of two additional persons without prior permission of the court. The deposition shall conform to the provisions of CR 30.

(d) Requests for Admission.

(1) A party may serve upon any other party up to 15 written requests for admission without prior permission of the court. Separate sections, paragraphs or categories contained within one request for admission shall be considered separate requests for purposes of this rule.

(2) The requests for admission shall conform to the provisions of CR 36.

(e) Other Discovery at Discretion of Court. No additional discovery shall be allowed, except as the court may order. The court shall have discretion to decide whether to permit any additional discovery. In exercising such discretion the court shall consider (1) whether all parties are represented by counsel, (2) whether undue expense or delay in bringing the case to trial will result and (3) whether the interests of justice will be promoted.

(f) How Discovery to Be Conducted. Any discovery authorized pursuant to this rule shall be conducted in accordance with Superior Court Civil Rules 26 through 37, as governed by CRLJ 26.

(g) Time for Discovery. Twenty-one days after the service of the summons and complaint, or counterclaim, or cross complaint, the served party may demand the discovery set forth in sections (a) - (d) of this rule, or request additional discovery pursuant to section (e) of this rule. Unless agreed by the parties and with the permission of the court, all discovery shall be completed within 60 days of the demand, or 90 days of service of the summons and complaint, or counterclaim, or cross complaint, whichever is longer.

[Amended effective September 1, 1994; amended effective September 1, 1999; amended effective September 1, 2005.]

 

A. Name of Proponent: District & Municipal Courts Judges Association

B. Spokesperson: Judge David Steiner, President DMCJA

C. Purpose: CRLJ 56 governs summary judgments in courts of limited jurisdiction. Subsection (c), pertaining to motion and proceedings, provides:

The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party, prior to the day of hearing, may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

CR 56 similarly governs the procedures and time deadlines for the filing and consideration of motions for summary judgment in superior court. A comparison of CR 56 and CRLJ 56 indicates that the respective rules are identical except for the language in subsection (c) and the omission of subsection (h) from the existing CRLJ 56.

Subsection (c) of both rules sets forth the time requirements for filing motions for summary judgment and the legal standard for granting or denying these motions. Under CR 56(c), a motion for summary judgment must be filed at least 28 days before the motion hearing, with the adverse party allowed to file a responsive pleading at least 11 days before the hearing. By contrast, the moving party under the existing CRLJ 56(c) must file the motion and supporting pleadings at least 10 days before the motion hearing and the adverse party may file responsive pleadings prior to the day of the hearing.

The DMCJA recommends that CRLJ 56(c) be amended to expand the initial filing period from 10 to 15 days prior to the hearing, with the adverse party being required to file and serve any responsive pleadings no later than three days before the hearing date. The amended CRLJ 56(c) also provides that the moving party may file rebuttal pleadings the day prior to the motion hearing.

The abbreviated time limits created by CRLJ 56 seem to stem from the time when the jurisdictional limits of district courts resulted in more limited proceedings. With the increase in the civil jurisdiction limit in district court to $75,000 (and perhaps more in the future), it makes sense to increase the time periods. Under the current rule, a high percentage of responsive pleadings are filed at or near the end of the court day prior to the hearing and are not seen by the judge or the litigants until the day of the hearing. With the increased complexity of the motions, the adverse parties (many of whom are unrepresented), should have additional time to respond to the allegations. Requiring the adverse party to file a responsive pleading within three days provides the moving party with an opportunity to review the response and consider whether it is advisable to cancel or continue the motion hearing. The three-day filing requirement promotes court efficiency and calendaring as it affords litigants the opportunity to assess their legal posture (and any possible settlement), and provides additional time for the judge to review in advance the pleadings filed by the respective parties.

The revised subsection (c) would read:

(c) Motion and Proceedings. The motion and any supporting affidavits, memoranda of law, or other documentation shall be filed and served at least 10 not later than 15 days before the time fixed for the hearing. The adverse party, prior to the day of hearing, may file and serve opposing affidavits, memoranda of law and other documentation not later than 3 days before the hearing. The moving party may file and serve any rebuttal documents not later than the day prior to the hearing. Summary judgment motions shall be heard more than 14 days before the date set for trial unless leave of the court is granted to allow otherwise. The judgment sought shall be rendered forthwith if the pleadings, answers to interrogatories, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

The final proposed revision to existing CRLJ 56 is to include a similar paragraph to CR 56(h), which governs the form of the order signed by the court, but which allows for more judicial discretion. The new subsection would read:

This addition would improve the clarity of the judicial record in the limited jurisdiction court.

For the reasons set forth herein, the DMCJA recommends that CRLJ 56 be amended as submitted.

D. Hearing: A hearing is not requested.

E. Expedited Consideration: Expedited consideration is not requested.

Proposed Amendment

(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross claim, or to obtain a declaratory judgment may, at any time after the expiration of the period within which the defendant is required to appear, or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.

(b) For Defending Party. A party against whom a claim, counterclaim, or cross claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

(c) Motion and Proceedings. The motion and any supporting affidavits, memoranda of law, or other documentation shall be filed and served at least 10 not later than 15 days before the time fixed for the hearing. The adverse party, prior to the day of hearing, may file and serve opposing affidavits, memoranda of law and other documentation not later than 3 days before the hearing. The moving party may file and serve any rebuttal documents not later than the day prior to the hearing. Summary judgment motions shall be heard more than 14 days before the date set for trial unless leave of the court is granted to allow otherwise. The judgment sought shall be rendered forthwith if the pleadings, answers to interrogatories, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

(d) Case Not Fully Adjudicated on Motion. If on motion under the rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action, the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

(f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

(g) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney fees, and any offending party or attorney may be adjudged guilty of contempt.