Changes to the Utah Rules of Civil Procedure

The Utah Supreme Court has approved amendments to the Utah Rules of Civil Procedure. The amendments are effective May 1, 2017.

Rule 7 | Pleadings allowed; motions, memoranda, hearings, orders.

• Addition of section “(q),” which places two new limits on applications for an order to show cause: (1) the application “shall be made only for enforcement of an existing order or for sanctions for violating an existing order;” and (2) the application must be supported by an affidavit.

o   The addition, in its entirety, is here:

(q) Limit on order to show cause. An application to the court for an order to show cause shall be made only for enforcement of an existing order or for sanctions for violating an existing order. An application for an order to show cause must be supported by an affidavit sufficient to show cause to believe a party has violated a court order. Nothing in this rule is intended to limit or alter the inherent power of the court to initiate order to show cause proceedings to assess whether cases should be dismissed for failure to prosecute or to otherwise manage the court’s docket.

• Additionally, there is a new Advisory Committee Note, which provides:

The 2017 amendments to Rule 7 return pre-2015 paragraph (b)(2) language addressing limits on orders to show cause to new paragraph (q) and also clarify the discretion the court retains to manage its docket. Paragraph (q) is directed only at limitations on order to show cause proceedings initiated by parties.

• See the red-lined rule here: http://www.utcourts.gov/utc/rules-approved/wp-content/uploads/sites/4/2017/03/7-legislative-format.pdf

 Rule 35 | Physical and Mental Examination of Persons

• The 2017 amendments to Rule 35 clarify when there is overlap between a Rule 26(a)(4) expert report and when there is not. They also provide the shorter of a 60-day time frame or 7 days prior to the close of fact discovery in which the party requesting the Rule 35 examination must disclose the report to the person being examined.
• If the party requesting the exam wishes to call the examiner as an expert witness, the party must disclose the examiner as an expert within the time prescribed in Rule 26(a)(4), but need not provide an additional report if the report provides all the information required in 26(a)(4).
• A change to the Advisory Committee Note has removed the following sentence:

Medical examiners will be treated as other expert witnesses are treated, with the required disclosure under Rule 26 and the option of a report or a deposition.

• The Advisory Committee Note added the following paragraph, which clarifies the intent behind the rule change:

A report must be provided for all examinations under this rule. The Rule 35 report is expected to include the same type of content and observations that would be included in a medical record generated by a competent medical professional following an examination of a patient, but need not otherwise include the matters required to be included in a Rule 26(a)(4) expert report. If the examiner is going to be called as an expert witness at trial, then the designation and disclosures under Rule 26(a)(4) are also required, and the opposing party has the option of requiring, in addition to the Rule 35(b) report, the expert’s report or deposition under Rule 26(a)(4)(C). The rule permits a party who furnishes a report under Rule 35 to include within it the expert disclosures required under Rule 26(a)(4) in order to avoid the potential need to generate a separate Rule 26 (a)(4) report later if the opposing party elects a report rather than a deposition. But submitting such a combined report will not limit the opposing party’s ability to elect a deposition if the Rule 35 examiner is designated as an expert.

• See the red-lined rule here: http://www.utcourts.gov/utc/rules-approved/wp-content/uploads/sites/4/2017/03/35-legislative-format.pdf

Rule 45 | Subpoena

• In conformity with Rule 84’s repeal (see below, infra), this amendment makes a technical amendment to paragraph (a)(1)(E). It also makes a technical amendment to paragraph (i) in anticipation of the prisoner mailbox rule's adoption.
• Changes to section “(i):” instead of emphasizing actual incarceration, the changes to section “(i)” focus on the witness’s status as an inmate (e.g., “confined in jail,” has been changed to “is an inmate”).
• See the red-lined rule here: http://www.utcourts.gov/utc/rules-approved/wp-content/uploads/sites/4/2017/03/45-legislative-format.pdf

Rule 65 | Post-Conviction Relief

• Expressly makes all records in the criminal case under review, including the records in an appeal of that conviction, part of the trial court record in the petition for post-conviction relief.
• See the red-lined rule here: http://www.utcourts.gov/utc/rules-approved/wp-content/uploads/sites/4/2017/03/65C-legislative-format.pdf

Rule 84 | Forms

• Repealed. Since the task of creating and updating court forms resides with the newly formed Judicial Council Standing Committee on Forms under UCJA Rules 1-205 and 3-117, the Supreme Court's Advisory Committee on the Rules of Civil Procedure will no longer create forms.
• See the red-lined rule here:http://www.utcourts.gov/utc/rules-approved/wp-content/uploads/sites/4/2017/03/84-legislative-format.pdf