Opinion
Opinion delivered December 4, 1997
The Arkansas Supreme Court Committee on Civil Practice has submitted its annual proposals and recommendations for changes in the Arkansas Rules of Civil Procedure, the Arkansas Rules of Evidence, the Arkansas Rules of Appellate Procedure — Civil, and the Court's Administrative Orders.
We have reviewed the Committee's work and with minor changes we now publish the suggested amendments to the Rules and the Reporter's Notes for comment from the bench and bar. We note that the proposed amendment to Rule 5 of the Civil Rules of Procedure, if adopted, will result in Ark. Code Ann. § 16-20-109, as amended by Act 874 of 1997, being deemed superseded.
We again express our gratitude to the Chair of the Committee, Judge John Ward, its Reporter, Professor John J. Watkins, and the Committee membership for their faithful and helpful work with respect to the Rules.
Comments and suggestions on these suggested rules changes may be made in writing prior to January 10, 1998. They should be addressed to: Clerk, Arkansas Supreme Court
Attn: Civil Procedure Rules Justice Building 625 Marshall Street Little Rock, Arkansas 72201
Comments and suggestions on the Arkansas Rules of Civil Procedure, generally, should be addressed to:
Professor John J. Watkins Leflar Law Center University of Arkansas Fayetteville, Arkansas 72701Arkansas Rules of Civil Procedure
The following rules are proposed to be amended by adding the italicized language and/or deleting the lined-through language. Additions to the Reporter's Notes follow each rule.
1. RULE 4. SUMMONS is amended to read as follows:
(c) BY WHOM SERVED: Service of summons shall be made by (1) a sheriff of the county where the service is to be made, or his or her deputy; (2) any person not less than eighteen years of age appointed for the purpose of serving a summons by either the court in which the action is filed or a court in the county in which service is to be made; [or] (3) any person authorized to serve process under the law of the place outside this state where service is made; or (4) in the event of service by mail pursuant to subdivision (d)(8) of this rule, by the plaintiff or an attorney of record for the plaintiff.
The Reporter's Notes accompanying Rule 4 are amended by adding the following:
ADDITION TO REPORTER'S NOTES, 1998 AMENDMENT: Former paragraph (3) has been redesignated as paragraph (4), and a new paragraph (3) has been added. The new provision, based on Ark. Code Ann. § 16-4-102(B), is designed to eliminate any confusion as to who may make service on an out-of-state defendant. Paragraph (3) is consistent with Rule 4(e)(2), under which service outside the state may be made "in any manner prescribed by the law of the place in which service is made in that place in an action in any of its courts of general jurisdiction." Although this paragraph appears broad enough to allow service by someone authorized to make service in the state where service is to be made, some federal courts held that an analogous federal rule addressed only how service is to be made, not who may make service. E.g., Veeck v. Commodity Enterprises, Inc., 487 F.2d 423 (9th Cir. 1973).
2. RULE 5. SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS is amended to read as follows:
(c) FILING. (1) All papers after the complaint required to be served upon a party or his attorney shall be filed with the clerk of the court either before service or within a reasonable time thereafter. The clerk shall note the date and time of filing thereon. However, depositions, interrogatories, requests for production or inspection, proposed findings of fact, proposed conclusions of law, trial briefs, proposed jury instructions, and responses thereto may, but need not be filed with the clerk unless ordered by the court. When such discovery documents are relevant to a motion, they or the relevant portions thereof shall be submitted with the motion and attached as an exhibit unless such documents have already been filed. The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in the proper form.
(2) If the clerk's office has a facsimile machine, the [The]fn_ clerk [may]fn_ shall accept facsimile transmissions of any paper filed under this rule, [provided that it is transmitted on to bond-type paper that can be preserved for a period of at least ten years or on to nonbond paper if an original is substituted for the facsimile copy within ten days of transmission.]fn_ Any signature appearing on a facsimile copy shall be presumed authentic until proven otherwise. A facsimile copy shall be deemed received and filed when it is transmitted to the proper office and received on the clerk's facsimile machine without regard to the hours of operation of the clerk's office. [The date and time printed by the clerk's facsimile machine on the transmitted copy shall be prima facie evidence of the date and time of the filing.]fn_
The clerk shall stamp or otherwise mark the facsimile copy as filed on the date and time printed thereon by the clerk's facsimile machine.
The Reporter's Notes accompanying Rule 5 are amended by adding the following:
ADDITION TO REPORTER'S NOTES, 1998 AMENDMENT: Several changes have been made in subdivision (c)(2) concerning facsimile filings. The statute on which the rule was originally based, Ark. Code Ann. § 16-20-109, has been deemed superseded.
The first sentence of subdivision (c)(2) has been amended to require any clerk with a facsimile machine to accept facsimile filings. Previously, the rule provided that a clerk with a facsimile machine "may accept" papers filed by fax. Apparently, some clerks refused papers filed in this manner even though they had the necessary equipment. Also, language in the first sentence requiring that an original document be substituted for a fax filing if the latter were not made on bond-type paper has been deleted. This provision was considered unnecessary in light of improvements in the quality of fax machines.
The third sentence of subdivision (c)(2) has been amended to provide that a fax copy is deemed received and filed when transmitted "to the proper office." This requirement appeared in Section 16-20-109, as amended by Act 874 of 1997. In addition, the last sentence of the rule has been revised to require that the clerk stamp or otherwise mark the facsimile copy as filed on the date and time printed by the clerk's facsimile machine. This provision is intended to address the situation that arose in Bhatti v. McCabe, 326 Ark. 176, 928 S.W.2d 340 (1996). A corresponding change has been made in Administrative Order No. 2.
3. RULE 30. DEPOSITIONS UPON ORAL EXAMINATION. The third sentence of Rule 30(f)(1) is amended by deleting the words "securely seal" and replacing them with the word "place."
(f) CERTIFICATION BY OFFICER; EXHIBITS; COPIES; NOTICE OF FILING. (1) The officer shall certify that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. This certificate shall be in writing and accompany the record of the deposition. The officer shall [securely seal]fn_ place the deposition in an envelope or package indorsed with the title of the action and marked "Deposition of (name of witness)" and, if ordered by the court in which the action is pending pursuant to Rule 5 (c), promptly file it with the clerk of that court. Otherwise, the officer shall send it to the attorney who arranged for the transcript or recording, who shall store it under conditions that will protect it against loss, destruction, tampering, or deterioration. Documents and things produced for inspection during the examination of the witness shall, upon the request of a party, be marked for identification and annexed to and returned with the deposition, and may be inspected and copied by any party, except that (A) the person producing the materials may substitute copies to be marked for identification, if he affords to all parties fair opportunity to verify the copies by comparison with the originals, and (B) if the person producing the materials requests their return, the officer shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them and the materials may then be used in the same manner as if annexed to and returned with the deposition. Any party may move for an order that the original be annexed to the deposition if it is to be used at trial.
The Reporter's Notes accompanying Rule 30 are amended by adding the following:
ADDITION TO REPORTER'S NOTES, 1998 AMENDMENT: As amended in 1997, Rule 30(f)(1) provided that the officer taking the deposition "shall securely seal" it in an envelope or package and either file it with the clerk, if so ordered, or send it to the attorney who arranged for the deposition. The term "seal" could be read as implying that the attorney who received the deposition was obligated to keep it sealed. Such a result was not intended, and Rule 30(f)(1) has been amended to require that the officer "place" the deposition in an envelope. The obligation that the attorney "store it under conditions that will protect it against loss, destruction, tampering, or deterioration" remains unchanged.
4. RULE 32. USE OF DEPOSITIONS IN COURT PROCEEDINGS is amended by adding the following after the first sentence:
(c) FORM OF PRESENTATION. Except as otherwise directed by the court, a party offering deposition testimony pursuant to this rule may offer it in stenographic or nonstenographic form, but, if in nonstenographic form, the party shall also provide the court with a transcript of the portions so offered. The transcript must be prepared by a certified court reporter from the nonstenographic recording. On request of any party in a case tried before a jury, deposition testimony offered other than for impeachment purposes shall be presented in nonstenographic form, if available, unless the court for good cause orders otherwise.
The Reporter's Notes accompanying Rule 32 are amended by adding the following:
ADDITION TO REPORTER'S NOTES, 1998 AMENDMENT: Subdivision (c) requires that the court be furnished with a transcript of any deposition testimony presented at trial in nonstenographic form. It was not clear, however, whether the transcript had to be certified by the officer before whom the deposition was taken. If that were so, the rule would as a practical matter require the presence of a court reporter at video depositions; under Section 9 of the rules providing for certification of court reporters, "transcripts . . . will be accepted only if they are certified by a court reporter who holds a valid certificate under this Rule." Such a result would be at odds with Rule 30(b), which contemplates depositions taken by nonstenographic means only. Accordingly, a new second sentence has been added to Rule 32(c) making plain that the transcript must be prepared by a certified court reporter from the audio or video tape recording of the deposition, thereby ensuring that the transcript accurately reflects what is on the tape offered at trial.
5. RULE 35. PHYSICAL AND MENTAL EXAMINATION OF PERSONS is amended to read as follows:
(c) MEDICAL RECORDS. (1) A [Where a]fn_ party who relies upon his or her physical, mental or emotional condition as an element of his or her claim or defense[, he]fn_ shall, within 30 days after the request of any other party, execute an authorization to allow such other party to obtain copies of his or her medical records[;]fn_, [provided, however, a party shall not be required, by order of court or otherwise, to authorize any communication with his physician or psychotherapist other than (1) the furnishing of medical records, and (2) communications in the context of formal discovery procedures.]fn_ The term "medical records" means any writing, document or electronically stored information pertaining to or created as a result of treatment, diagnosis or examination of a patient. (2) Any informal, ex parte contact or communication between a party or his or her attorney and the physician or psychotherapist of any other party is prohibited, unless the party treated, diagnosed, or examined by the physician or psychotherapist expressly consents. A party shall not be required, by order of court or otherwise, to authorize any communication with his or her physician or psychotherapist other than (A) the furnishing of medical records, and (B) communications in the context of formal discovery procedures.
The Reporter's Notes accompanying Rule 35 are amended by adding the following:
ADDITION TO REPORTER'S NOTES, 1998 AMENDMENT: Subdivision (c) has been divided into numbered paragraphs and reorganized. It has been also amended to address an issue on which the Arkansas federal courts have disagreed. Compare Harlan v. Lewis, 141 F.R.D. 107 (E.D. Ark. 1992), aff'd, 982 F.2d 1255 (8th Cir. 1993), with King v. Ahrens, 798 F. Supp. 1371 (W.D. Ark. 1992). Consistent with the result reached in Harlan, the first sentence of paragraph (2) provides that a party or his or her attorney cannot interview or otherwise informally contact another party's treating physician or psychotherapist without that party's consent. This new provision reflects the intent of the original version of the rule, i.e., to limit communications with a party's physician or psychotherapist to the formal discovery process. A corresponding change has been made in Rule 503(d)(3), Ark. R. Evid.
6. RULE 50. MOTION FOR DIRECTED VERDICT AND FOR JUDGMENT NOTWITHSTANDING is amended by substituting "Appellate Review" for "Failure to Question the Sufficiency of the Evidence" in the caption and by adding a new second sentence as follows:
(e) Appellate Review. [Failure to Question the Sufficiency of the Evidence.]fn_ When there has been a trial by jury, the failure of a party to move for a directed verdict at the conclusion of all the evidence, because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. If for any reason the motion is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.
The Reporter's Notes accompanying Rule 50 are amended by adding the following:
ADDITION TO REPORTER'S NOTES, 1998 AMENDMENT: A new sentence has been added to subdivision (e) of the rule to make clear that a party's failure to obtain a ruling on his or her motion for directed verdict at the close of all the evidence is not a waiver of the issue of the sufficiency of the evidence for purposes of appellate review. Compare Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996) (sufficiency of evidence issue was not preserved for appeal in a criminal case where there was no ruling on the defendant's motion for directed verdict at the close of all the evidence). The new sentence provides that the motion is deemed denied if for any reason it is not ruled upon.Rules of Evidence
RULE 503(d) is amended by revising paragraph (3) to read as follows:
(d) (3) CONDITION AN ELEMENT OF CLAIM OR DEFENSE. (A) There is no privilege under this rule as to medical records or communications relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he or she relies upon the condition as an element of his or her claim or defense, or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his or her claim or defense.[Administrative Orders; provided, however, a patient shall not be required, by order of court or otherwise, to authorize any communication with any physician or psychotherapist other than (A) the furnishing of medical records, and (B) communications in the context of formal discovery procedures.]fn_ (B) Any informal, ex parte contact or communication with the patient's physician or psychotherapist is prohibited, unless the patient expressly consents. The patient shall not be required, by order of court or otherwise, to authorize any communication with any physician or psychotherapist other than (i) the furnishing of medical records, and (ii) communications in the context of formal discovery procedures.
ADMINISTRATIVE ORDER NUMBER 2 — DOCKETS AND OTHER RECORDS
1. Subdivision (b) of Administrative Order No. 2 is amended by adding a new second sentence as follows:
(b) JUDGMENTS AND ORDERS. The clerk shall keep a judgment record book in which shall be kept a correct copy of every final judgment or appealable order, or order affecting title to or lien upon real or personal property, and any other order which the Court may direct to be kept. The clerk shall denote the date and time that a judgment or order is filed by stamping or otherwise marking it with the date and time and the word "filed."
2. Administrative Order No. 2 is further amended by redesignating subdivision (f) as subdivision (g) adding new subdivision (f) as follows:
(f) Papers Filed by Facsimile Transmission. If a document is filed by facsimile transmission, the clerk shall stamp or otherwise mark it as filed on the date and time printed on the document by the clerk's facsimile machine.
[(f)]fn_ (g) CLERK DEFINED. When used herein, the term clerk refers to the clerks of the various circuit, chancery or probate courts of the state.
Rules of Appellate Procedure — Civil
1. Rule 4(e) is amended by adding a new second sentence as follows:
RULE 4. APPEAL WHEN TAKEN
(e) WHEN JUDGMENT IS ENTERED. A judgment, decree or order is entered within the meaning of this rule when it is filed with the clerk of the court in which the claim was tried. A judgment, decree or order is filed when the clerk stamps or otherwise marks it as "filed" and denotes thereon the date and time of filing.
The Reporter's Notes accompanying Rule 4 are amended by adding the following:
ADDITION TO REPORTER'S NOTES, 1998 AMENDMENT: Subdivision (e) has been amended to reflect case law pertaining to the filing of judgments, decrees, and orders. The second sentence of the revised rule provides that a judgment, order, or decree is filed when the clerk stamps or marks the date and time of filing thereon, along with the word "filed." See Arkansas Dept. of Human Services v. Hardy, 316 Ark. 119, 871 S.W.2d 352 (1994); Schaefer v. McGhee, 284 Ark. 370, 681 S.W.2d 353 (1984). A corresponding change has been made in Administrative Order No. 2.