Update Notices

 Disclaimer: This information is provided “as is,” and numerous authorities are provided for easy validation of these updates. None of the information is a substitute for the advice of an attorney, and no warranty is made for the accuracy or completeness of any of the information furnished. Paragraph and page numbers refer to your book(s). Please visit the Web sites provided below for additional changes and information, as well as the Announcements and News alerts on this Web site.

California State Updates

(http://leginfo.legislature.ca.gov; http://www.courts.ca.gov)

2017 State Updates – Code of Civil Procedure (CCP)

Service of Deposition Notice or Subpoena to Produce Electronically Stored Information [CCP § 2025.280(c)]

Subdivision (c) was added, effective January 1, 2017: “A deponent required by notice or subpoena to produce electronically stored information shall provide a means of gaining direct access to or a translation into a reasonably usable form of, any electronically stored information that is password protected or otherwise inaccessible.”

Production of Materials by an Expert [CCP § 2034.415]

This section was added, effective January 1, 2017: “An expert described in subdivision (b) of Section 2034.210 whose deposition is noticed pursuant to Section 2025.220 shall, no later than three business days before his or her deposition, produce any materials or category of materials, including any electronically stored information, called for by the deposition notice.”

2016 State Updates

Electronic Signature [CCP §§ 17(b)(3), 34]

Effective January 1, 2016, an electronic signature is defined to mean an electronic sound, symbol, or process attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the electronic record. An electronic signature by a court or judicial officer shall be as effective as an original signature.

Objections to Evidence [CCP § 437c(q)]

Effective January 1, 2016, the court need rule only on objections to evidence it deems material to disposition of the motion in granting or denying a motion for summary judgment or summary adjudication. Objections to evidence not ruled on for purposes of the motion shall be preserved for appellate review.

Motion for Summary Adjudication [CCP § 437c(t)-(u)]

This amendment was first effective on January 1, 2012, with a sunset date of January 1, 2015. The statute was inadvertently allowed to sunset but has been permanently reenacted effective January 1, 2016. Despite CCP § 437c(f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, an affirmative defense, or an issue of duty. Before filing, the parties whose claims or defenses are put at issue by the motion must submit a joint stipulation and declarations to the court that the motion will further the interest of judicial economy by reducing time in trial or significantly increase the likelihood of settlement. Within 15 days after the court receives the stipulation and declarations, unless extended for good cause, the court will notify the submitting parties whether the motion may be filed. The court may consider a nonstipulating party’s objections if made within 10 days of submission of the stipulation. If the court does not allow the filing of the motion, the parties may request an informal conference conducted by the court for further evaluation of the proposed stipulation. Required language (or a substantial equivalent) in the notice of motion is: “This motion is made pursuant to subdivision (t) of Section 437c of the Code of Civil Procedure. The parties to this motion stipulate that the court shall hear this motion and that the resolution of this motion will either further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.” [See CCP § 437c(t)(4)]

Offer to Compromise [CCP § 998(c)(1), (d)]

In the discretion of the court or arbitrator, this amendment clarifies that either plaintiff or defendant may be entitled to post-offer expert witness costs if their settlement offer is rejected and a more favorable judgment or award is not obtained.

Objections to Pleadings [CCP §§ 430.41, 472, 472a]

These amendments concern demurrers. Code of Civil Procedure section 430.41 was added, effective January 1, 2016, to require the parties to meet and confer in person or by telephone at least five days before the date a responsive pleading is due to determine whether they can reach an agreement to resolve the objections raised in the demurrer. Please read these sections in their entirety, as there are a number of requirements affecting the filing, amending, and resolution of demurrers.

Contents of Notice for Oral Deposition Inside California [CCP § 2025.220(a)(8)]

Effective January 1, 2016, deposition notices are required to include a statement disclosing the existence of a contract, if any is known, between the noticing party or a third party financing all or part of the action and the deposition officer or the entity providing services of the deposition officer. Disclosure is also required if the attorney was directed to use a particular officer or entity to provide services for the deposition by the party noticing the deposition or a third party financing all or part of the action.

Expedited Jury Trial (EJT) [CCP §§ 630.01-630.30]

A voluntary EJT may be conducted when the parties sign a consent order stipulating to these procedures. Formerly set to expire on January 1, 2016, the voluntary EJT provisions were extended indefinitely. Modifications were made, effective January 1, 2016, to provide that each party has up to five hours to complete voir dire and present its case. The Judicial Council is required to update pertinent rules and forms by July 1, 2016. [CCP §§ 630.01-630.30]

Provisions for a mandatory EJT were added for limited civil cases (with some exceptions). The Judicial Council is required to adopt rules and forms to implement the mandatory EJT provisions on or before July 1, 2016, at which time they will become operative. The sunset date is July 1, 2019. [CCP §§ 630.20-630.30]

2017 California Rules of Court (CRC)

To view all recent amendments, please visit http://www.courts.ca.gov > Forms & Rules > Rules of Court > New & Amended Rules.

Effective January 1, 2017, Protection of Privacy [formerly CRC 1.20(b)], was renumbered and adopted as CRC 1.201. Among the amendments are the following:

Rule 3.823(d), Rules of Evidence at Judicial Arbitration Hearing, was amended two times recently. The first amendment added service by electronic means under CCP § 1010.6 and CRC 2.251 to service by mail as provided in CCP § 1013(a). The most recent amendment, effective January 1, 2017, eliminated specific references to mail and instead refers to service “in the manner provided by Code of Civil Procedure section 1013.” Personal service is also allowed under this rule.

Requirements for format of electronically filed documents in CRC 2.256(b) must be followed for papers submitted or filed electronically, including exhibits. [CRC 2.100(c), 2.114]

Rule 2.118(a)(3) was added to provide that the clerk must not reject a paper for filing solely on the ground that the font size is not exactly that required by rules 2.104 and 2.110(c) on PDF papers submitted electronically.

Rule 2.251(i)(1) was amended to add that a proof of electronic service does not need to state that the party making the service is not a party to the case, nor does the time of the electronic service need to be stated. Subdivision (3) adds that under rule 3.1300(c), proof of electronic service of moving papers must be filed at least five court days before the hearing.

Rule 2.256(b)(3), regarding the format of documents to be filed electronically, was amended to provide that the “document must be text searchable when technologically feasible without impairment of the document’s image.”

Rule 2.306(h)(1) deleted the requirement of including the time on a proof of service by fax.

2016 California Rules of Court

Expedited Jury Trial (EJT)

Effective July 1, 2016, amended rule 3.1545 pertains to the application and definitions of EJTs. Rule 3.1546 was adopted for mandatory EJTs in limited civil cases, rules 3.1547-1548 were amended and applicable only to cases with voluntary EJTs, and rules 3.1549-3.1553 were amended and applicable to all EJTs. Assignment of Judicial Officers, formerly rule 3.1546, was renumbered to 3.1553.

Many of the amendments effective on January 1, 2016, were revised to include electronic filing and service provisions.

Emergency Suspension of Case Management Rules

California Rules of Court, rules 3.712 and 3.720, were amended in February 2013 to permit courts to exempt by local rules types or categories of general civil cases from the mandatory case management rules. That emergency suspension affected cases filed before January 1, 2016. Effective January 1, 2016, that date was extended to cases filed before January 1, 2020. [CRC 3.720(b)]

2015 State Updates

Native American Day

Government Code section 6700 was amended to declare the fourth Friday of September as the state holiday of Native American Day, but it was not intended to be a judicial holiday. Code of Civil Procedure section 135 was amended, effective June 24, 2015, to clarify that it is not a judicial holiday.

Briefing Uniformity

Effective January 1, 2015, the briefing timelines for a motion for judgment notwithstanding the verdict [CCP § 629(b)] and a motion to set aside and vacate the judgment [CCP § 663a(d)] are the same as for a motion for new trial [CCP § 659a].

Certificate of Acknowledgment

Effective January 1, 2015, the top of a certificate of acknowledgment must now include a notice enclosed in a box that states, “A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.” [Civ. Code § 1188, subd. (a)(1)]

2013-2014 State Updates

Expert Witness Discovery

The warning box on extending the date of exchange when the demand is served by mail is no longer necessary. [Introduction to California Civil Litigation, ¶ 7.7.5; California Calendar Key, ¶ 3.7.2; and Calendar Procedures Key, ¶ 3.7.2] The court in Staub v. Kiley (2014) 226 CA4th 1437, 1445, 173 Cal.Rptr.3d 104, lacking case authority, cites Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2013) ¶ 8:1649.2-8:1649.3, p. 8J-7, as follows: “[I]f an expert witness demand is served by mail, the exchange date must be extended accordingly (i.e., 5 days for mail within California, 10 days outside state, etc.). With that extension, the exchange date may be closer to trial than 50 days, leaving less time to complete expert discovery.”

Code of Civil Procedure sections 2030.300(c) [Interrogatories], 2031.310(c) [Inspection Demand], and 2033.290(c) [Requests for Admission]

Effective January 1, 2014, notice of a motion to compel further response must be given within 45 days after service of a verified response or any supplemental verified response (or on or before any specific later date to which the propounding party and the responding party have agreed in writing).

Recycled Paper

The rules pertaining to the use of recycled paper were repealed, effective January 1, 2014. Refer to California Rules of Court, rules 1.6(22), 1.22, 2.101, and 2.131.

Telephone Appearance

California Rules of Court, rule 3.670, was once again amended, renumbered, and relettered, effective January 1, 2014. This time, unless the court requires otherwise, all parties, including moving parties, may appear by telephone at all conferences, hearings, and proceedings. Exceptions requiring personal appearance are listed under subdivision (e). New subdivision (d)(1) provides for appearance by telephone for applicants seeking an ex parte order if moving papers have been filed and a proposed order submitted at least 2 court days by 10:00 a.m. before the ex parte appearance and (if required by local rule) copies provided directly to the department where the matter will be considered. Subdivision (d)(2) provides that even if the applicant did not comply with (d)(1), unless the court otherwise requires a personal appearance, opposing parties for an ex parte order may appear by telephone. Under subdivision (f), the court has discretion to modify this rule. In addition to the statewide telephone appearance fees, a $30 additional late request fee will be charged for an appearance by telephone if it is not made at least two days before the appearance, with certain exceptions listed under (k)(2). [Also see CRC 3.1207]

Other Amendments to California Rules of Court

For these and other recently-amended rules of court, see http://www.courts.ca.gov/3025.htm. Among the amendments are the following appellate rules: Requirements for signatures of multiple parties on filed documents [CRC 8.42, adopted 01/01/2014]; sealed and confidential records [CRC 8.45, adopted 01/01/2014; 8.46, amended eff. 01/01/2014; 8.47, adopted 01/01/2014]; requirements for signatures on electronically-filed documents [8.77, amended eff. 01/01/2014]; civil case information statement now must be served and filed by appellant in reviewing court within 15 days instead of 10 [CRC 8.100(g), amended eff. 01/01/2014]; clerk’s transcript [CRC 8.122(c), amended eff. 01/01/2014]; reporter’s transcript [CRC 8.130, amended eff. 01/01/2014]; failure to procure the record [CRC 8.140, amended eff. 01/01/2014]; when the record is complete [CRC 8.149, adopted 01/01/2014]; service and filing of briefs, extensions of time and service regarding signatures and service (if brief not filed electronically) [CRC 8.212(b)-(c), amended eff. 01/01/2014]; and extending time for court reporter to prepare a transcript [CRC 8.810(b)(2)(A), (B); (d); amended eff. 03/01/2014]. Amendments to rules related to appeals and records in limited civil cases include extending time [CRC 8.810(b)(2), (d), amended eff. 03/01/2014]; extending time to appeal [CRC 8.823(h); amended eff. 03/01/2014]; clerk’s transcript [CRC 8.832(c)(3), (4); (d); amended eff. 01/01/2014]; reporter’s transcript [CRC 8.834(d)-(f), amended eff. 03/01/2014]; record when trial proceedings were officially electronically recorded [CRC 8.835, amended eff. 03/01/2014]; statement on appeal [CRC 8.837(b)-(f), amended eff. 03/01/2014]; completion and filing of the record [CRC 8.840(a), amended eff. 01/01/2014]; decision [CRC 8.887(c)(2), amended eff. 03/01/2014].

Electronic Filing and Service

California Rules of Court, rules 2.250-2.254, 2.256, 2.258, and 2.259, were amended effective July 1, 2013, and cover authorization for electronic service by consent of the parties or requirement by local rule or court order, as well as general rules on direct or indirect electronic filing of documents. By local rule, a court may now permit or require electronic filing (or require it by court order).

Presumption of Fax Filing

Also effective July 1, 2013, if a fax-filed document was not filed due to an error in transmission unknown to the sending party or a failure to process the document after it was received by the court, the sending party may make a motion for an order filing the document nunc pro tunc (retroactive legal effect). The motion must be accompanied by the transmission record and a proof of transmission in the form shown in California Rules of Court, rule 2.304(d). That rule was amended to delete the phrase, “At the time of transmission I was at least 18 years of age and not a party to this legal proceeding.”

Conditional Settlement

Effective July 1, 2013, California Rules of Court, rule 3.1385(c), was amended. If a settlement agreement conditions dismissal of the entire case on completion of terms not to be performed within 45 days after settlement, including installment payments, the notice must be served and filed by each plaintiff or other party seeking affirmative relief, specifying the date the dismissal is to be filed. If it is not filed within 45 days after that date, the court must dismiss the entire action unless good cause is shown otherwise. Except for show cause or other hearings related to sanctions or determination of good faith settlement under CCP § 877.6, upon filing the notice of conditional settlement, the court must vacate (and may not set) hearings and other proceedings requiring the appearance of a party sooner than 45 days after the dismissal date unless requested by a party. Filing the notice also removes the case from the computation of time to determine case disposition.

Emergency Suspension of Case Management Rules

As a response to the fiscal crisis, California Rules of Court, rules 3.712 and 3.720, were amended effective February 26, 2013, to temporarily permit courts to exempt by local rule types or categories of general civil cases from the mandatory case management rules. If a court opts out of the case management rules for those cases, it must post on its Web site descriptions of alternative procedures for processing cases and setting trials, including judicial arbitration and mediation. However, a court does not need to include these specific procedures in its local rules, which will allow it the speed and flexibility to develop or change its alternative procedures as needed. This emergency suspension affects cases filed before January 1, 2016. Amended rule 3.720(c) provides that the uniform case management rules will apply to any case in which a court sets an initial case management conference.  (See http://www.courts.ca.gov/cms/rules/index.cfm?title=three)

Code of Civil Procedure section 2031.240(c)

Effective January 1, 2013, if an objection is based on a claim of privilege or work-product protection, sufficient factual information must be provided in the response for other parties to evaluate the merits of the claim, including, if necessary, a privilege log.

Code of Civil Procedure section 2025.290(a)

Effective January 1, 2013,  deposition examination of a witness by all counsel (other than the witness’ counsel of record) is limited to seven hours of total testimony. Additional time will be allowed by the court if necessary to fairly examine the deponent or if the deponent, another person, or other circumstance impedes or delays the examination. Subdivision (b) provides exceptions.

Code of Civil Procedure section 659, 663a

Effective January 1, 2013, a motion to set aside and vacate a judgment and a motion for a new trial must be brought after a decision is rendered and before the entry of judgment. Also, please note the addition of Code of Civil Procedure section 663a(b).

Senate Bill 1574

Effective January 1, 2013, clean-up legislation expanded the California Electronic Discovery Act by amending additional statutes relating to discovery and the civil subpoena process. These amendments added references to and procedures for electronically stored information to statutes that previously pertained only to the discovery of documents and other tangible items. Previous discovery sanctions and safe harbors now also apply to the discovery of electronically stored information. These changes rendered the former provisions regarding the use of technology in conducting discovery in complex cases unnecessary, and they were repealed. (For the entire text, see http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_1551-1600/sb_1574_bill_20120710_chaptered.pdf.)

2012 State Updates

Code of Civil Procedure section 631

Effective September 17, 2012, Code of Civil Procedure sections 631 and 631.3 were amended to provide that at least one party on each side of a civil case must pay a nonrefundable $150 jury fee to avoid a waiver of trial by jury. If there are more than two parties to a case, all plaintiffs are considered one side, and all other parties are considered the other side. [CCP § 631(b), (f)] The jury fee is due on or before the date scheduled for the initial case management conference except as follows: (1) In unlawful detainer actions, the fees are due at least five days before the date set for trial; (2) If no case management conference is scheduled or the initial case management conference was held before June 28, 2012, and the initial complaint was filed on or after July 1, 2011, the fee is due no later than 365 calendar days after the initial complaint was filed; (3) If the initial case management conference was held before June 28, 2012, and the initial complaint was filed before July 1, 2011, the fee is due at least 25 calendar days before the initial trial date; (4) If the party requesting a jury has not appeared before the initial case management conference, or first appeared more than 365 days after the initial complaint was filed, the fee is due at least 25 calendar days before the initial trial date. [CCP § 631(c)] Amended subdivision (d) provides that if a party failed to timely pay the fee due between June 27, 2012, and November 30, 2012, the party will be relieved of a jury waiver on that basis only if it pays the fee on or before December 31, 2012, or 25 calendar days on or before the initial trial date, whichever is earlier. For more information, see http://www.courts.ca.gov/documents/JURY-FAQs-for-Attys-Ptys-9-17-12.pdf.

Code of Civil Procedure section 437c(s)-(u)

Despite CCP § 437c(f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, an affirmative defense, or an issue of duty. It may be brought only upon stipulation of the parties whose claims or defenses are put at issue by the motion and a prior determination and order by the court that the motion will further interests of judicial economy, reduce the time in trial, or significantly increase ability of the parties to settle the case. Within 15 days of the court’s receipt of the joint stipulation and declarations, the court shall notify the submitting parties whether the motion may be filed. If the court declines to allow the filing, the stipulating parties may request that an informal conference be conducted by the court to permit further evaluation of the proposed stipulation, but no further papers may be filed in support of the proposed motion. Any motion for summary adjudication brought under CCP § 437c(s) must contain the following language, or its substantial equivalent, in the notice: “This motion is made pursuant to subdivision (s) of Section 437c of the Code of Civil Procedure. The parties to this motion stipulate that the court shall hear the motion and that the resolution of this motion will either further the interests of judicial economy by reducing the time to be consumed in trial or significantly increase the ability of the parties to resolve the case by settlement.” The notice of motion must be signed by counsel for all parties (and in pro per parties) to the motion. If any nonstipulating party files an objection within 10 days of submission of the stipulation, the court may consider the objection in determining whether the motion may be filed. [Effective from January 1, 2012 until January 1, 2015] Note: Please see amendments effective January 1, 2016, above regarding reenactment of this provision.

Code of Civil Procedure section 1008(g)

Appeal and review of motion for reconsideration: Effective January 1, 2012, an order denying a motion for reconsideration under (a) is not separately appealable unless the order itself is appealable (then the motion for reconsideration is reviewable as part of an appeal from that order).

Judicial Arbitration [CCP §§ 1141.20(a), 1141.23; CRC 3.826(a), 3.827(a)]

Effective January 1, 2012, CCP § 1141.20(a) is amended to provide that an arbitration award shall be final unless a request for a de novo trial or a request for dismissal in the form required by the Judicial Council is filed within 60 days after the date the arbitrator files the award with the court.

Sacramento County Superior Court

Also see the Announcements and News alerts for additional updates regarding this court.

Effective September 19, 2016, the Sacramento County Superior Court’s Civil Law and Motion Departments (Departments 53 and 54) and the Civil Settlement Conference Department (Department 59) will relocate to the Hall of Justice Building, 813 6th Street, Sacramento, CA 95814. The conferences in the Civil Settlement Conference Department (located on the first floor) will be set Monday through Thursday at the new time of 9:00 a.m. and 1:30 p.m. For more information, please see www.saccourt.ca.gov under News and Notices on the home page.

Effective July 1, 2016, changes to the Limited Civil Case Management Program are available at www.saccourt.ca.gov under News and Notices (see the Amended Public Notice).

Local rules, effective January 1, 2016, are available at www.saccourt.ca.gov > Local Rules. For Limited Civil Case rules, see > Departments > Civil > Limited Civil Case Program.

Dark Days Ahead:  Except for ex parte matters, the holiday closures for the Civil Law and Motion Departments in December 2015 and January 2016 for Department 53 are December 24, 31, and January 4; and for Department 54 are December 28 and January 5. See the notice here. https://www.saccourt.ca.gov/general/docs/pn-cv-law-and-motion-holiday-closures.Pdf.

Effective April 7, 2014, the Court will implement a new public access site to replace and expand on the current online services. An online account can be established that will be required to view and download case documents. This system is free until July 1, 2014, when public access fees will be charged for payment by credit card. California and Federal government entities are exempt. Parties with fee waivers must come to the court to view documents for free. Find out more information at http://saccourt.ca.gov/general/docs/pn-notice-of-changes-public-case-access-proposed-fee-changes.pdf.

New rules, effective January 1, 2014, are available at http://saccourt.ca.gov/local-rules/local-rules.aspx. The public notice for the Limited Civil Case Processing and Program Rules is available at http://saccourt.ca.gov/general/docs/pn-limited-civil-case-processing.pdf.

All local rules were renumbered and amended as of January 1, 2013. A conversion table of rules for Chapters 1 (General Rules), 2 (Civil), and 11 (Appellate Division) is provided here to help you locate the new rule number, but be sure to check the rule itself for amendments: sac-ct-rules-conv01012013.  Also check frequently for Changes to Court Operations on the Court’s home page (http://www.saccourt.ca.gov/).

Federal Updates

Amended Federal Rules of Civil Procedure (Effective December 1, 2016)

Amendments were made to Rules 4, 6, and 82: Rule 4(m) was amended to add 4(h)(2) to the last sentence, Rule 6(d) was amended to omit electronic service from the 3-day service extension, and Rule 82 was amended to reflect the enactment of 28 USC § 1390 and repeal of § 1392.

Amended Federal Rules of Civil Procedure (Effective December 1, 2015)

Amendments were made to Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, and 55 of the Federal Rules of Civil Procedure; and Rule 84 (forms) was abrogated, effective December 1, 2015. The blackline format of these changes are in Appendix B on page B-29 of the 2015 Calendar Procedures Key. Footnote references are also provided in Part II of that publication wherever applicable. The full text of these rules may be found at www.uscourts.gov > Rules & Policies > Current Rules of Practice & Procedure. Excerpts from the amendments are listed below with added text underlined.

  • Rule 1 – Scope and Purpose: Adds that the rules “. . . should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”
  • Rule 4(m) – Summons: Subdivision (m) changed the time limit for service on defendant from 120 to 90 days after the complaint is filed.
  • Rule 16(b)(2) – Time to Issue Scheduling Order: The judge must issue the scheduling order as soon as practicable, but unless the judge finds good cause for delay, the judge must issue it within the earlier of 90 days [formerly 120 days] after any defendant has been served with the complaint or 60 days [formerly 90 days] after any defendant has appeared.
  • Rule 26(b)(1) – Scope in General: This subdivision now reads: “Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
  • Rule 26(d)(2) – Early Rule 34 Requests: Early FRCP 34 requests are allowed more than 21 days after the summons and complaint are served on a party. The request is considered to have been served at the first FRCP 26(f) conference. [If the early request is delivered under this rule, a written response is due within 30 days after the FRCP 26(f) conference. FRCP 34(b)(2)(A)]
  • Rule 30 – Depositions by Oral Examination, Rule 31 – Depositions by Written Questions, and Rule 33 – Interrogatories to Parties were amended to add reference to Rule 26(b)(1) and (2).
  • Rule 37(e) – Failure to Preserve Electronically Stored Information: The language in this rule was changed from “failure to provide” and applies when electronically stored information is lost that should have been preserved in anticipation or conduct of litigation because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery. If this situation occurs, (e)(1) and (2) address steps the court may take.
  • Rule 55(c) – Default; Default Judgment: “The court may set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60(b).”
  • Rule 84 – Forms (and the Appendix of Forms): The forms have been eliminated with the exception of former Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons) and Form 6 (Waiver of the Service of Summons). These two forms have been incorporated directly into FRCP 4 (Summons). The abrogation does not alter existing pleading standards or requirements of Rule 8 (General Rules of Pleading).

Local Rules of the California District Courts

Please visit the district court Web sites below for local rule amendments and other information. Always check local rules and “local” local rules. [See ¶8.1]

  • Eastern District (www.caed.uscourts.gov), effective January 1, 2015
  • Northern District (www.cand.uscourts.gov), civil rules, effective January 17, 2017; ADR local rules, effective September 15, 2015
  • Central District (www.cacd.uscourts.gov), effective December 1, 2016 (Ch. 1- Local Civil Rules)
  • Southern District (www.casd.uscourts.gov), effective February 9, 2016

Amended Federal Rules of Civil Procedure (Effective December 1, 2013)

Amendments to Federal Rules of Civil Procedure 37 and 45 were effective December 1, 2013, and are available at http://www.uscourts.gov > Rules & Policies > Federal Rules of Practice & Procedure > Current Rules of Practice and Procedure.

Failure to Make Disclosure or to Cooperate in Discovery; Sanctions [FRCP 37(b)]

This rule was amended to conform with the Rule 45 amendments (see below), especially the addition of Rule 45(f) providing transfer of a motion related to a subpoena to the court where the action is pending. A sentence was added to FRCP 37(b)(1) regarding contempt of orders entered after a transfer. [Adv. Com. Note to 2013 Amendment]

Subpoena [FRCP 45]

The amendments were made to clarify and simplify this rule. They recognize the court where the action is pending as the issuing court, permit nationwide service, and organize the provisions regarding place of compliance into new subdivision (c). Rule 45(f) gives authority for the court where compliance is required to transfer a subpoena-related motion to the court where the action is pending, either on consent of the person subpoenaed or in exceptional circumstances. [Adv. Com. Note to 2013 Amendment]

December 2010 Federal Updates

Amendments to the Federal Rules of Civil Procedure were effective on December 1, 2010. These rules may be found at www.uscourts.gov > Rules & Policies > Federal Rulemaking > Rules and Forms in Effect > Federal Rules of Civil Procedure. Rules affecting your book(s) are FRCP 26, 56, and Form 52. Following are highlights of the changes.

Disclosure of Expert Testimony [FRCP 26]

Witnesses who must provide a written report [FRCP 26(a)(2)(B)]. This pertains to disclosure of an expert who is retained or specially employed to provide expert testimony in the case, or one whose duties as the party’s employee regularly involve giving expert testimony. The expert report must contain:

  • A complete statement of all opinions the witness will express and the basis and reasons therefor;
  • The facts or data (the amendment limited it from the former “data or other information”) considered by the witness in forming them;
  • Any exhibits that will be used to summarize or support them;
  • The witness’s qualifications, including a list of publications authored in the last 10 years;
  • A list of all other cases in the last four years in which the witness testified as an expert at trial or deposition; and
  • A statement of the compensation to be paid for the study and testimony of the case.

Witnesses who do not provide a written report [FRCP 26(a)(2)(C)]. In contrast, this new subdivision requires a disclosure of opinions to be offered by expert witnesses who have not been specially retained. The disclosure must state the subject matter on which the witness is expected to present evidence and a summary of the facts and opinions to which the witness is expected to testify.

Time to disclose expert testimony [FRCP 26(a)(2)(D)]. These disclosures must be made at least 90 days before the date set for trial or for the case to be ready for trial. If the evidence is intended only to contradict or rebut the evidence of another party’s expert, the disclosures must be made within 30 days after the other party’s disclosure. (This applies to both expert witnesses who must provide a written report and those for whom a disclosure is required.) The parties must supplement or correct this information in a timely manner as required under FRCP 26(e). [FRCP 26(a)(2)(E)]

Trial-preparation protection for draft reports or disclosures [FRCP 26(b)(4)(B)]. This new rule extends work-product protection under FRCP 26(b)(3)(A) and (B) to drafts of expert reports or disclosures, whether written, electronic, or otherwise.

Trial-preparation protection for communication between a party’s attorney and expert witnesses [FRCP 26(b)(4)(C)]. This rule provides work-product protection for attorney-expert communications (whether oral, written, electronic, or otherwise), but it is limited to expert witnesses who are required to provide a written report under FRCP 26(a)(2)(B). There are three exceptions to this protection:

  • Those relating to compensation for the expert’s study or testimony;
  • Identification of facts or data provided by the attorney that the expert considered in forming the opinions; and
  • Assumptions the party’s attorney provided that the expert relied on in forming the opinions.

Summary Judgment [FRCP 56]

This entire rule has been rewritten, but the most relevant portion is the change in timelines. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery. This wording has not changed, but the previous timelines for opposition (21 days after the motion is served or a responsive pleading is due, whichever is later) and reply (14 days after the response is served) have been deleted.