The following is a summary of notable changes to the rules governing civil practice in Arizona’s state courts based on orders issued by the Arizona Supreme Court following its August 2024 Rules Agenda.  They become effective January 1, 2025. 

Rules of Civil Procedure

Rule 7.2 – Good Faith Consultation

            A straightforward amendment to Rule 7.2(a) reminds parties of their obligation to confer before filing a motion in limine.  Rule 7.2(a) now requires a party to file a good-faith consultation certificate under rule 7.2(h) concurrently with any motion in limine.  Rules likely will continue to be amended to explicitly require that a good-faith consultation certificate be included with any filing pursuant to a particular rule.  As a reminder, the current rules which do so include Rules 11(c)(3)(C), 12(j), 26(i) and 37(a)(1). 

Rules 16(b) and 30(b) – Remote Depositions

Amendments to Rule 16(b) now require parties to address, at the required early meeting, whether they anticipate holding remote or in-person depositions, and whether the method of taking depositions may become an issue in the litigation.

Companion amendments to Rule 30(b) further focus those issues by now requiring the party noticing a deposition to state whether they intend to take the deposition in person or remotely.  If a deposition is to be held remotely, Rule 30(b) now requires the parties to meet and confer, before the deposition, to discuss who may attend the deposition and how they may appear, the method of recording, and the exchange of exhibits.  The meeting must take place within sufficient time for any disputes to be raised with the court

Rule 16(c)(8)(A) and (B) – Early Meeting and Orders

Rule 16(b), which governs the early meeting of the parties, requires discussion about tiering under16(b)(2)(E).  Rule 16(c) governs preparation of the joint report and proposed scheduling order.   Former Rules 16(c)(8)(A) and (B) were amended and renumbered, in part to clarify when Rules 16(b) and (c) are applicable, and to provide procedures for parties in cases subject to compulsory arbitration to resolve disputes about which discovery tier should apply.  The changes move former Rule 16(c)(8)(A) to Rule 16(l) and former Rule 16(c)(8)(B) to Rule 16(k) (yes, it is a different order).

A sentence was added to new Rule 16(l) to clarify disputes over tiering in cases subject to compulsory arbitration.  Now,  “[t]he parties must use the procedures set forth in Rule 16(c)(6)(B) if they disagree as to the appropriate tier.”

The word “proposed” was also eliminated from the title and caption of the forms used for scheduling orders – Forms 11(b), 12(b), 13(b), and 14(b).  This was done to eliminate the repetitive and needless administrative burden imposed on trial courts to edit the word “proposed” from such orders, which often require no other edits before issuance.

Rules of Evidence

Rule 107 – Illustrative Aids

Rule 107 is a new rule addressing the use of illustrative aids.  It is intended to conform the Arizona rules to anticipated changes to the Federal Rules of Evidence. 

An illustrative aid is a presentation that is not evidence, but is intended to assist the trier of fact better understand the evidence.  Rule 107 is intended to help courts differentiate between demonstrative evidence, which is evidence, and illustrative aids which are not.  Illustrative aids have traditionally been evaluated under Rule 611(a), which governs a court’s ability to control evidentiary matters generally. 

Under Rule 107(a), illustrative aids may be used as follows. 

The court may allow a party to present an illustrative aid to help the trier of fact understand the evidence or argument if the aid’s utility in assisting comprehension is not substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or wasting time.

Rules 107(b) and (c) further provide, where practicable, that the aid should be entered into the record, but should not be provided to the jury during deliberations, without consent of the parties or a court order.

To further eliminate any confusion, Rule 107(d) explicitly recognizes that “[a] summary, chart, or calculation admitted as evidence to prove the content of voluminous admissible evidence is governed by Rule 1006.”  Minor amendments to Rule 1006 in this regard are discussed below.

Rule 412 – Rape Shield Rule

            Rule 412 is another new rule modeled after its counterpart in the Federal Rules of Evidence.  It is known as the “rape shield rule” as it is intended to protect the victims of alleged sexual assault.  The rule prohibits evidence offered to prove a victim’s sexual predisposition, or that they engaged in other sexual behavior, except when probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.  However, a court may admit evidence of a victim’s reputation only if the victim has placed it in controversy.  The petition to amend the rule noted Arizona had not previously adopted the federal rule either through oversight, or because its protections were already provided for in statute, and suggested it was time that it did.   

Rule 613(b) – Extrinsic Evidence of a Witness’s Past Inconsistent Statement

            Rule 613(b) was amended to specify when extrinsic evidence of a witness’s past inconsistent statement may be admitted into evidence.  This again conforms the Arizona rule to anticipated changes in its federal counterpart.  Under former Rule 613(b), extrinsic evidence of a witness’s prior inconsistent statement was admissible only if the witness “is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to cross examine the witness about it, or if justice so requires.”  The rule was silent on when the opportunities for the witness to explain or deny the statement, and for the adverse party to cross examine, must occur.  

Common law required an adverse party to give a witness an opportunity to explain or deny a prior statement before the witness could be impeached with extrinsic evidence of the prior statement.  Former Rule 613(b) allowed extrinsic evidence before a witness was given an opportunity to explain or deny the statement, provided there was an opportunity to explain or deny the statement at some point in the trial.  The amendment to Rule 613(b) now makes clear extrinsic evidence of a prior statement is not admissible until after the witness is given an opportunity to explain or deny the statement.  

Rule 801(d)(2) – Hearsay

            Once again, in response to anticipated changes to its federal counterpart, an amendment to Rule 801(d)(2) adds a sentence at the end of the rule to clarify a declarant’s out-of-court statement is not hearsay if potential liability against a party is derived from the declarant or the declarant’s principal as follows. 

If a party’s claim, defense, or potential liability is directly derived from a declarant or the declarant’s principal, a statement that would be admissible against the declarant or the principal under this rule is also admissible against the party.

As an example, in a case involving vicarious liability where the actor upon whose conduct liability is based is not a party, the actor’s statements are not hearsay.  Previously, federal courts were split on the issue of admissibility, and Arizona had no case law on point. 

Rule 1006 – Summaries

            Rule 1006 governs summaries used as evidence to prove the content of typically voluminous documents.  The rule now makes clear that such summaries are to be admitted as evidence, so long as the underlying evidence upon which they are based is admissible (whether the underlying evidence is admitted or not).  More importantly, the rule now distinguishes summary evidence from illustrative aids governed by new Rule 107, as discussed above.

Rules of Procedure for Special Actions

            The Supreme Court formed a task force to review and recommend changes to the Rules of Procedure for Special Actions, which the task force did.  As a result, the Rules of Procedure for Special Actions were abrogated entirely and replaced with a new rule set that has been reformatted, re-stylized, and reordered.  Numerous substantive changes to the former rules were adopted as well.  A discussion of the changes is beyond the scope of this article.  Practitioners would do well to generally familiarize themselves with the new rule set.

Conclusion

            As always, the rules governing civil practice are ever evolving, and it is important for practitioners to stay abreast of the annual onslaught of changes.  I am always hopeful that things might quiet down for a year or two, but it seems much like time, rule changes slow for no person.  Good luck with the new rules in your cases!

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