Tag Archives: Discovery

New Rule 45.1: Subpoena for Interstate Depositions and Discovery

As of January 1, 2018, there is a new Rule 45.1 in the Arkansas Rules of Civil Procedure.

Rule 45.1 is an implementation of the Uniform Interstate Depositions and Discovery Act.  The UIDDA has been enacted in about 40 states.

Under Rule 45.1:

  • Procedure:
    • An attorney in a pending out-of-state case may have issued a subpoena (for attending a deposition or for records) in the state where the case is pending.
    • The attorney may then submit the out-of-state subpoena and an Arkansas subpoena form (with the same terms) to the Arkansas clerk.
    • The clerk will then issue the Arkansas subpoena without opening a case. The out-of-state attorney thus does not have to hire Arkansas counsel for the subpoena to be issued.
  • Objections. The Arkansas person served with the subpoena may serve a written objection to the subpoena or discovery sought. If that is done, the requesting party must get an order to proceed further.
  • Arkansas Jurisdiction. Arkansas jurisdiction is invoked (and an Arkansas case would be opened) if needed to enforce or resolve any issues regarding the subpoena.
  • Arkansas Law. The discovery conducted in Arkansas must comply with Arkansas law.

Continue reading New Rule 45.1: Subpoena for Interstate Depositions and Discovery

ACOA: No Error in Deeming as Admitted Served-But-Not-Filed Admission Request Responses

In the December 11, 2013 case, Hardesty v. Baptist Health, 2013 Ark. App. 731, 431 S.W.3d 327 (2013), the Arkansas Court of Appeals held that there was no abuse of discretion when the circuit court deemed as admitted responses to requests for admission that were properly served but were not filed as requires by Rule 5(c) of the Arkansas Rules of Civil Procedure. 

The appellants argued that deemed admission was not a proper sanction since it was not specifically provided for in Rule 5. The court of appeals disagreed finding the situation to be similar to a failure to timely file an answer to a complaint resulting in a default judgment.

An interesting contrast is the more recent (September 14, 2016) case of Scott v. Scott, 2016 Ark. App. 390, 499 S.W.3d 653 (2016). In this case, the appellee served but failed to file responses to requests for admission. However, he did file a notice that the responses had been sent to opposing counsel. Continue reading ACOA: No Error in Deeming as Admitted Served-But-Not-Filed Admission Request Responses

ACOA: Court Must Weigh Circumstances Before Imposing Discovery Sanctions

In the November 17, 2010 opinion Young v. Kajkenova, 2010 Ark. App. 783, the Arkansas Court of Appeals held that a circuit court must weigh the facts and circumstances before making a discovery sanctions order.

In November 2008, appellant and estate representative Lawrence Young, refiled his previously nonsuited medical malpractice lawsuit.  After appellee Oumitana Kajkenova, M.D. filed his answer, the circuit court entered a scheduling order and set an October 27, 2009 jury trial.

Kajkenova propounded discovery in January 2009. In June, Kajkenova still had not received any responses. Kajkenova’s attorney sent repeated letters to Young’s attorney asking for the responses and stating that he wanted to depose any experts Young would call at trial.

Kajkenova finally filed a motion to compel on August 10, 2009 to which Young did not respond. On September 4, 2009, the court entered an order compelling responses to the discovery requests and requiring that all Young’s witnesses be made available for deposition by September 25, 2009. Continue reading ACOA: Court Must Weigh Circumstances Before Imposing Discovery Sanctions