WSR 20-01-036

RULES OF COURT

STATE SUPREME COURT

[December 4, 2019]

Aderant CompuLaw, having recommended the suggested amendments to CR 30 (b)(l)—Depositions Upon Oral Examination, and CR 43 (f)(l)—Taking of Testimony, 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 2020.

(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, 2020. 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 4th day of December, 2019.

GR 9 COVER SHEET

SUGGESTED AMENDMENTS TO

SUPERIOR COURT CIVIL RULES (CR)

Rules 30 (b)(1) and 43 (f)(1)

(A) Name of Proponent: The suggested amendments are submitted by Aderant CompuLaw. Aderant CompuLaw is a software-based court rules publisher providing deadline information to many law firms practicing in the Washington Superior Courts.

(B) Spokesperson: Cheryl Siler, Director of Operations, Aderant CompuLaw, 200 Corporate Pointe, Suite 400, Culver City, CA 90230, (310) 846-0860.

(C) Purpose: The suggested amendments are necessary to eliminate an ambiguity in the calculation of the deadlines to give notice under Washington Superior Court Civil Rules ("CR") 30 (b)(1) and 43 (f)(1). Under CR 30 (b)(1), a party is required to give 5 days' notice for an oral deposition. CR 43(f)(1) requires a party to give 10 days' notice for the attendance of a party or managing agent at trial. Both rules specify that the time periods for notice exclude the day of service. In practice, the deadlines to give notice are generally calculated by counting backward from the date of deposition or trial. Thus, the requirement to exclude the day of service is causing confusion amongst litigators before the Washington state courts. Additionally, because CR 6(a) already provides a clear method for computation of time, the suggested amendments would eliminate some of the redundant language in CR 30 (b)(1) and 43 (f)(1).

(D) Hearing: A hearing is not requested.

(E) Expedited Consideration: Expedited consideration is not requested.

Argument in Support of Suggested Amendments

CR 30 (b)(1) and 43 (f)(1)

Washington Superior Court Civil Rule ("CR") 30 (b)(1) states in part:

A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing of not less than 5 days (exclusive of the day of service, Saturdays, Sundays and court holidays) to every other party to the action and to the deponent, if not a party or a managing agent of a party. [Emphasis added.]

CR 43 (f)(1) states in part:

Notices for the attendance of a party or of a managing agent at the trial shall be given not less than 10 days before trial (exclusive of the day of service, Saturdays, Sundays, and court holidays). [Emphasis added.]

CR 6(a) states:

In computing any period of time prescribed or allowed by these rules, by the local rules of any superior court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, a Sunday nor a legal holiday. Legal holidays are prescribed in RCW 1.16.050. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.

When calculating a deadline to act or take some proceedings after service, it is clear under CR 6(a) that the date of service is excluded, and that the computation of the time period begins on the day after service.

To determine when notice must be given under CR 30 (b)(1) and 43 (f)(1), it is our understanding that most practitioners simply count backward 5 court days from the date of the deposition, or 10 court days from the date of trial, respectively. Under CR 6(a), the day of the event is excluded and the last day of the period is included.

However, it is unclear whether an additional day should be added at the end of the calculation in order to accommodate the exclusion of the date of service per CR 30 (b)(1) and 43 (f)(1). Some practitioners interpret the rules as actually requiring calculations that are 6 court days before the date of deposition and 11 court days before the date of trial.

The requirement to exclude the date of service is also somewhat unclear given that the rules do not specify that service is required. The rules only state that notice must be "given."

Additionally, CR 6(a) already excludes Saturdays, Sundays and legal holidays for time periods less than 7 days. Thus, the parenthetical language for the 5-day deadline under CR 30 (b)(1) is redundant.

We suggest that the Court eliminate the ambiguity and redundancy by amending CR 30 (b)(1) to delete the parenthetical information regarding the computation of time, and by amending CR 43 (f)(1) to delete the parenthetical information regarding the exclusion of the day of service. Adopting these suggested amendments will eliminate confusion and ensure that parties practicing before the Washington Superior Courts are able to generate reliable and consistent deadlines in their matters.

SUGGESTED AMENDMENT TO

SUPERIOR COURT CIVIL RULES (CR)

Rule 30 (b)(1)

(b) Notice of Examination: General Requirements; Special Notice; Nonstenographic Recording; Production of Documents and Things; Deposition of Organization; Video Tape Recording.

(1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing of not less than 5 days (exclusive of the day of service, Saturdays, Sundays and court holidays) to every other party to the action and to the deponent, if not a party or a managing agent of a party. Notice to a deponent who is not a party or a managing agent of a party may be given by mail or by any means reasonably likely to provide actual notice. 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 the deponent or the particular class or group to which the deponent belongs. 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. A party seeking to compel the attendance of a deponent who is not a party or a managing agent of a party must serve a subpoena on that deponent in accordance with rule 45. Failure to give 5 days notice to a deponent who is not a party or a managing agent of a party may be grounds for the imposition of sanctions in favor of the deponent, but shall not constitute grounds for quashing the subpoena.

(f) Adverse Party as Witness.

(1) Party or Managing Agent as Adverse Witness. A party, or anyone who at the time of the notice is an officer, director, or other managing agent (herein collectively referred to as "managing agent") of a public or private corporation, partnership or association which is a party to an action or proceeding may be examined at the instance of any adverse party. Attendance of such deponent or witness may be compelled solely by notice (in lieu of a subpoena) given in the manner prescribed in rule 30 (b)(1) to opposing counsel of record. Notices for the attendance of a party or of a managing agent at the trial shall be given not less than 10 days before trial (exclusive of the day of service, Saturdays, Sundays, and court holidays). For good cause shown in the manner prescribed in rule 26(c), the court may make orders for the protection of the party or managing agent to be examined.