The Arizona Rules of Civil Procedure were significantly amended, effective January 1, 2024, impacting everything from arbitration to summary judgments and much in between. This overview provides insights into several of the amendments most directly affecting procedures and potential outcomes in our cases.

Separate Statement of Facts to Motions for Summary Judgment – Rule 56(c)

A major rule change was made to clarify the scope of the separate statement of facts required to accompany a summary judgment motion.[i] Rule 56(c)(3) now limits the statement of facts to only “specific material facts” in support of the motion,[ii] all of which must be included in the motion.[iii] No legal argument is permitted in the statement of facts.[iv] This amendment requires parties to restrict their separate statements of facts to “material facts” to discourage inclusion of unnecessary facts and eliminate legal argument that should only be included in the motion.

A further amendment limits separate statements in Tier 1 and Tier 2 cases to 11 pages, without exhibits.[v] Tier 1 and 2 cases are less complex and should require fewer material facts to support summary judgment. The court has the discretion to adjust the page limit.[vi]

Because the opposing statement of facts must contest any facts disputed from the moving party’s statement of facts and also provide the opposing party’s own statement of facts in support of its response, responses to the moving party’s separate statement may be 17 pages in Tier 1 and 2 cases.[vii] The movant cannot file a reply statement of facts but can respond to new facts raised in an opposing party’s statement of facts in its reply memorandum and can also attach admissible evidence to its reply memorandum.[viii] The moving party can object to the admissibility of a responding party’s evidence in the reply memorandum.[ix] Additionally, the parties can agree on a joint statement of undisputed facts.[x] The joint statement of facts can include a stipulation that the agreement to any undisputed fact is solely for the purpose of the motion.[xi] The joint statement does not count against page limits.[xii]

Physical and Mental Examinations – Rule 35

Rule 35 has long been viewed as ambiguous and often unworkable in discovery without court intervention. It has now been substantially rewritten and reorganized. Rule 35 now explicitly states a party may request a physical or mental examination.[xiii] The party must give no less than 30 days’ notice[xiv] and must state the time, place, manner and scope, name of person(s) to perform the examination, and, if any recording will take place, the method and identification of recording provider must be specified.[xv]

With 15 days’ written notice prior to the examination, the party being examined may also record the examination and/or have a representative present at the examination or to record it.[xvi] A new objection provision in Rule 35 allows any party to file a motion for protective order under Rules 26(c) or (d) objecting to the examination, not just the party to be examined.[xvii]

Lastly, changes to Rule 35 eliminate ambiguity from the “like reports” provision that has caused debate since its inclusion.[xviii] Prior to the January 2024 changes, the rule stated the examined party could request “like reports of all earlier examinations of the same condition.”[xix] Sometimes, plaintiffs’ counsel would creatively argue the language required production of all reports of all persons previously examined by the physician regarding the same condition. This resulted in discovery motion practice, which eventually culminated in an appellate court decision last year holding that “‘like reports of all earlier examinations of the same condition’ refers to ‘like reports’ of the same condition in the individual examined.”[xx] As discussed in detail in our July 14, 2023 article, the appellate court’s holding informed the amended rule, which now states: “The party requesting the examination must produce like reports of all earlier examinations of the person examined involving the same condition.”[xxi]

Subpoenas – Rule 5.1

In an effort to modernize the filing system for subpoenas, the legislature appears to be foreshadowing the intention to move towards electronic issuance of subpoenas. An amendment to Rule 5.1(c)(2)(A) allows parties to file subpoenas and for them to be included in the case record. This will create a more complete record of court-issued documents. The rule is currently optional (“may file”), so filing subpoenas is not yet a requirement. Hopefully, future amendments allowing clerks to issue subpoenas electronically will make subpoena practice quicker and easier.

Takeaway

Specifically for summary judgment and Rule 35 issues, these amendments appear to be directed at making some areas of motion and discovery practice more “user-friendly” both for parties, as well as the judges who decide the issues. Parties and counsel should take heed of these new rules and the reasoning behind them to put our “best foot forward.” These rules are also leaning toward streamlining court processes and filings. Hopefully, this will result in the more efficient resolution of individual issues and matters.

Keep Reading

Asian American & Pacific Islander Heritage Month Spotlight: Sarah Porter Slay the Serpent: How To Combat the Reptile Theory in Deposition! New Jersey Supreme Court Rules Against Casino in COVID-19 Coverage Fight Don’t Play with FMLA! Long Time FSU Employee Settles After Termination Following Approval of FMLA Leave To Reimburse or Not Reimburse? That Is the Question I’ll Be Missing You(r Particularity): Ignoring Salacious Allegations to Focus on Pleading Standards When Is an Assault Not an Assault? When It’s Medical Malpractice! Personalize the Corporate Defendant to Sway Jurors! Cannabis Workers Allege Quota to Trim 4 Pounds a Day Violates the California Labor Code

More by this author

2024 Amendments to Arizona Rules of Civil Procedure: The Good News Federal Versus Arizona State Wage Statutes: The Higher Damages Takes It A Wager with Death – Arizona Supreme Court Says Policy to Remain Valid Despite Beneficiary Betting on Decedent’s Death A Bit(coin) of Trouble with Arbitration IME Reports of a Feather Get Turned Over Together (If They Relate to the Same Individual) A Picture is Worth a Thousand Words (and So Are Prior Accidents!) for Jurors in Arizona Feeling Conflicted: Arizona Supreme Court to Resolve Conflict in Laws Affecting Enforceability of Life Insurance Policies

Sources

[i] Ariz.R.Civ.P. 56(c)(3)(A).

[ii] Ariz.R.Civ.P. 56(c)(3)(A).

[iii] Ariz.R.Civ.P. 56(c)(3)(A)(iii).

[iv] Ariz.R.Civ.P. 56(c)(3)(A)(iv).

[v] Ariz.R.Civ.P. 56(c)(3)(A)(v).

[vi] Id. (“not exceed 11 pages, exclusive of attachments, unless the court orders otherwise.”)(emphasis added).

[vii] Ariz.R.Civ.P. 56(c)(3)(B).

[viii] Ariz.R.Civ.P. 56(c)(3)(C).

[ix] Ariz.R.Civ.P. 56(c)(4).

[x] Ariz.R.Civ.P. 56(c)(3)(D).

[xi] Id.

[xii] Id.

[xiii] “Right to Request a Physical or Mental Examination. A party may request that a physician or psychologist perform a physical or mental examination of another party, or a person who is in another party’s custody or under its legal control, when that party or person’s physical or mental condition is in controversy.” Ariz.R.Civ.P. 35(a).

[xiv] Ariz.R.Civ.P. 35(d)(1).

[xv] Id. at (A), (B), (C), and (D).

[xvi] Ariz.R.Civ.P. 35(d)(2) and (3).

[xvii] Ariz.R.Civ.P. 35(e).

[xviii] See Ariz.R.Civ.P. 35(h)(1)(C).

[xix] Ariz.R.Civ.P. 35(h)(1)(C), eff. 7/1/2018 through December 31, 2023.

[xx] Kelly v. The Hon. John Blanchard, et. al., No. 1 CA-SA 23-0021 (Ariz. Ct. App. Apr. 27, 2023).

[xxi] Ariz.R.Civ.P. 35(h)(1)(C).