Many important changes to the Arizona Rules of Civil Procedure will go into effect in 2017. Though it is recommended that every lawyer do their due diligence by reviewing the changes carefully, here is a summary of some of the rules to take an especially close look at:
1. Perhaps the most substantial change to the Rules is matching the scope of discovery allowed with the newer "proportional" standard in the Federal rules. Instead of simply being relevant, the parties and court must also weigh the importance of the issues in the case, amount in controversy, access to relevant information, resources available, the importance of the discovery in resolving the issue and burden of expense compared to the benefit. While critics contend this narrows the scope of what is discoverable and invites parties to challenge requests based on one of the factors stated above, others do not think it is going to change much to the current legal landscape. 26(b)(1)
2. When parties meet and confer (11, 26, 37, 56), a form of certification is now required and mandates the parties actually speak to each other instead of simply communicating via letter and email. When one party fails to be responsive, the certification allows the other party to state they tried. When parties are required to work together in forming joint briefs, sanctions are encouraged for parties that do not cooperate or make themselves available. These line of rules encourage more overall cooperation and actual communication amongst the parties. 7.1(h), 7.4.
3. The deadline to respond to written discovery is now the federal 30 days instead of 40. Objections must be specific and any non-objectional portion of a request must still be answered or produced. If a party objects to a request for production but nevertheless produces some material, they must let the other party know if other material is being withheld based on the objection. 33, 34, 36.
4. The complexity and growth of technology and electronically stored information has led to new rules specifically designed to address this special type of discovery and litigation. These rules encourage parties to work together in determining what, how and when ESI will be produced, with a special court proceeding in place to address any conflicts. They also encourage sanctions against any party who fails to preserve relevant ESI, the severity of the sanction depending on how prejudicial and intentional the spoliation is. Finally, they allow more leeway for witnesses to give testimony remotely. 26.1(b), 37(g), 43.
5. The rules require a broader, more specific, transparent and thorough disclosure of what insurance is available to cover a plaintiff's claim. This appears to come as a result of vague and incomplete insurance disclosures, leaving the plaintiff in the dark about an extremely important part of evaluating a case. 26.1
A great review of the rule changes can be found in the December 2016 issue of the Arizona Attorney here.