November 2007 Minutes
The Practice and Procedure Committee met on Monday, November 19, 2007, at 12:00 noon.
Members Present (12)
William S. Brown, Chair
Linda James Amason
Mary Au
Robert Lesley Brown
Steven Edward Buckingham
Matthew W. Christian
John J. Fantry Jr.*
Rosalyn Woodson Frierson
Roger B. Jellenik
James J. Raman
Mary Spencer Shroeder
Angela Gilbert Strickland
Bar Staff Present (1)
Carey Way
*Participated via telephone.
Call to Order: Mr. Brown called the meeting to order and welcomed everyone.
Minutes: By motion, second and unanimous vote, the Committee adopted the minutes from the September 21 meeting.
Old Business/Updates:
A. Proposed amendments not recommended by Ad Hoc Rules Committee/awaiting Supreme Court decision:
i. Rule 4(d)(8), SCRCP-service by certified mail
ii. Rule 26(b)(4)(c), SCRCP â€"Trial preparation: Experts
iii. Rule 30(i), SCRCP-and Rule 32(a)(3), SCRCP â€"Retained experts and Use of Depositions
B. Proposed amendment recommended by Ad Hoc Rules Committee/awaiting Supreme Court decision:
i. Rule 33(b)(8), SCRCP â€"Standard Interrogatories/limitations
Mr. Brown reported he had extensive conversations with the Supreme Court staff counsel assigned to these amendments at the Supreme Court. Mr. Brown provided additional information regarding the genesis of all the proposed amendments and offered to provide any additional information needed. Mr. Brown reported he provided background as to Rule 4(d)(8) outlining problems to include accurate proofs of service requested not being provided by the postal service or other carriers and Plaintiff’s attorneys having to pay for process service significantly increasing costs of suits. Mr. Brown reported staff counsel indicated to him that the Court would take an additional look at the amendments during the month of December in order to make proposals to the General Assembly in January.
C. Rule 43(k), SCRCP â€"Agreements of Counsel
Proposed edited Rule:
(k) Agreements of Counsel. No agreement between counsel affecting the proceedings in an action shall be binding unless reduced to the form of a consent order or written stipulation signed by counsel and entered in the record, or unless made in open court and noted upon the record. Settlement agreements shall be handled in accordance with Rule 41.1., SCRCP.
Mr. Brown reminded members that the proposed edit was approved at the last meeting and it was voted to inform the ADR Commission of the Committee’s proposal. He reported he had forwarded it to Chair Howard of the ADR Commission and Mr. Howard indicated he would take up the matter at their November meeting. He asked members if anyone had any knowledge of what transpired at the November meeting and Ms. Frierson reported she was almost certain ADR Commission had voted favorably to support the proposed edit. Mr. Brown reported the proposed edited Rule would now need to be submitted to the House of Delegates. Ms. Way informed the Committee that the House of Delegates would be meeting on January 24, 2008, with a deadline for agenda items being December 21, 2007. Mr. Brown said a Memo would be submitted to the House of Delegates in the next couple of weeks and reported he thought this was the only matter to be reported to the House at this time.
D. Electronic Discovery Rule Changes/Update on Committee member’s response to draft proposal for EED Amendments to SCRCP
Mr. Brown suggested the matter be tabled until the next meeting when the full subcommittee and a larger number of committee members were present to provide opportunity for discussion prior to the Committee as a whole making a decision. The Committee unanimously agreed to table the matter.
E. Status of newly adopted goal: Analyze proposal to change Rule to Show Cause (SCRCP) to be uniform with other Rules/Update on request for additional subcommittee volunteer request
Mr. Brown stated subcommittee members Borsanyi and Sheftman were not present. He asked members present if anyone would like to volunteer for the subcommittee. Hearing no response, he requested Ms. Way distribute an email via listserv to all Committee members asking for additional volunteers and the matter would be listed as old business on the next agenda. Although it was not on the agenda, Ms. Way reminded Chair Brown it was determined at the prior meeting that he would prepare a letter in response to the suggestion of the Bar House of Delegates set out in the “Resolution Regarding Selection of Municipal Judges.†Mr. Brown reported he would prepare the letter this week stating the Committee concurred that magistrate court qualifications should be equal to municipal court qualifications.
New Business:
A. Request of SC Supreme Court Staff Attorney’s Office to supply with any future petition for rule changes an attachment which denotes the problems with the present rules and how the changes sought will solve those problems.
Mr. Brown reported following House of Delegates’ approval on a matter, the Committee and the Bar had been asked to supply a Memo to the Court providing greater detail of proposed Rule changes. This would include:
· What the specific problem is at present/how recommended to rectify
· Why looking for amendment
· History on the origin/how the matter was brought to the Committee, i.e. letter/telephone call
B. Request of SC Bar Public Affairs Director for point person(s) and Columbia area testifiers for legislative purposes.
Ms. Way reported that Kali Turner SC Bar Public Affairs Director had requested each Committee/Section provide point person(s) and testifiers.
Mr. Brown offered to serve as point person, and there was no opposition. Mr. Fantry offered to serve as a testifier but asked for a back-up volunteer. Mr. Brown stated he would contact Committee members Sheftman and Cotter who practice in the Columbia area and ask if they would agree to volunteer.
Mr. Brown asked if there were any additional business matters the Committee would like to discuss. Mr. Raman inquired as to status of Children's Justice Task Force/proposal to change SCRE 404 to incorporate Federal Rules of Evidence 413 and 414, making it easier to get in more evidence in child molestation cases where the defendant was guilty of bad acts. Mr. Brown reported that subcommittee had looked into the matter and Mr. Day had reported during the September meeting that he would move for the subcommittee to take no action and the matter was stricken from record.
Next Meeting: The next meeting would be scheduled by the Chair for February.
Adjournment: There being no further business, Mr. Brown adjourned the meeting.
Members Present (12)
William S. Brown, Chair
Linda James Amason
Mary Au
Robert Lesley Brown
Steven Edward Buckingham
Matthew W. Christian
John J. Fantry Jr.*
Rosalyn Woodson Frierson
Roger B. Jellenik
James J. Raman
Mary Spencer Shroeder
Angela Gilbert Strickland
Bar Staff Present (1)
Carey Way
*Participated via telephone.
Call to Order: Mr. Brown called the meeting to order and welcomed everyone.
Minutes: By motion, second and unanimous vote, the Committee adopted the minutes from the September 21 meeting.
Old Business/Updates:
A. Proposed amendments not recommended by Ad Hoc Rules Committee/awaiting Supreme Court decision:
i. Rule 4(d)(8), SCRCP-service by certified mail
ii. Rule 26(b)(4)(c), SCRCP â€"Trial preparation: Experts
iii. Rule 30(i), SCRCP-and Rule 32(a)(3), SCRCP â€"Retained experts and Use of Depositions
B. Proposed amendment recommended by Ad Hoc Rules Committee/awaiting Supreme Court decision:
i. Rule 33(b)(8), SCRCP â€"Standard Interrogatories/limitations
Mr. Brown reported he had extensive conversations with the Supreme Court staff counsel assigned to these amendments at the Supreme Court. Mr. Brown provided additional information regarding the genesis of all the proposed amendments and offered to provide any additional information needed. Mr. Brown reported he provided background as to Rule 4(d)(8) outlining problems to include accurate proofs of service requested not being provided by the postal service or other carriers and Plaintiff’s attorneys having to pay for process service significantly increasing costs of suits. Mr. Brown reported staff counsel indicated to him that the Court would take an additional look at the amendments during the month of December in order to make proposals to the General Assembly in January.
C. Rule 43(k), SCRCP â€"Agreements of Counsel
Proposed edited Rule:
(k) Agreements of Counsel. No agreement between counsel affecting the proceedings in an action shall be binding unless reduced to the form of a consent order or written stipulation signed by counsel and entered in the record, or unless made in open court and noted upon the record. Settlement agreements shall be handled in accordance with Rule 41.1., SCRCP.
Mr. Brown reminded members that the proposed edit was approved at the last meeting and it was voted to inform the ADR Commission of the Committee’s proposal. He reported he had forwarded it to Chair Howard of the ADR Commission and Mr. Howard indicated he would take up the matter at their November meeting. He asked members if anyone had any knowledge of what transpired at the November meeting and Ms. Frierson reported she was almost certain ADR Commission had voted favorably to support the proposed edit. Mr. Brown reported the proposed edited Rule would now need to be submitted to the House of Delegates. Ms. Way informed the Committee that the House of Delegates would be meeting on January 24, 2008, with a deadline for agenda items being December 21, 2007. Mr. Brown said a Memo would be submitted to the House of Delegates in the next couple of weeks and reported he thought this was the only matter to be reported to the House at this time.
D. Electronic Discovery Rule Changes/Update on Committee member’s response to draft proposal for EED Amendments to SCRCP
Mr. Brown suggested the matter be tabled until the next meeting when the full subcommittee and a larger number of committee members were present to provide opportunity for discussion prior to the Committee as a whole making a decision. The Committee unanimously agreed to table the matter.
E. Status of newly adopted goal: Analyze proposal to change Rule to Show Cause (SCRCP) to be uniform with other Rules/Update on request for additional subcommittee volunteer request
Mr. Brown stated subcommittee members Borsanyi and Sheftman were not present. He asked members present if anyone would like to volunteer for the subcommittee. Hearing no response, he requested Ms. Way distribute an email via listserv to all Committee members asking for additional volunteers and the matter would be listed as old business on the next agenda. Although it was not on the agenda, Ms. Way reminded Chair Brown it was determined at the prior meeting that he would prepare a letter in response to the suggestion of the Bar House of Delegates set out in the “Resolution Regarding Selection of Municipal Judges.†Mr. Brown reported he would prepare the letter this week stating the Committee concurred that magistrate court qualifications should be equal to municipal court qualifications.
New Business:
A. Request of SC Supreme Court Staff Attorney’s Office to supply with any future petition for rule changes an attachment which denotes the problems with the present rules and how the changes sought will solve those problems.
Mr. Brown reported following House of Delegates’ approval on a matter, the Committee and the Bar had been asked to supply a Memo to the Court providing greater detail of proposed Rule changes. This would include:
· What the specific problem is at present/how recommended to rectify
· Why looking for amendment
· History on the origin/how the matter was brought to the Committee, i.e. letter/telephone call
B. Request of SC Bar Public Affairs Director for point person(s) and Columbia area testifiers for legislative purposes.
Ms. Way reported that Kali Turner SC Bar Public Affairs Director had requested each Committee/Section provide point person(s) and testifiers.
Mr. Brown offered to serve as point person, and there was no opposition. Mr. Fantry offered to serve as a testifier but asked for a back-up volunteer. Mr. Brown stated he would contact Committee members Sheftman and Cotter who practice in the Columbia area and ask if they would agree to volunteer.
Mr. Brown asked if there were any additional business matters the Committee would like to discuss. Mr. Raman inquired as to status of Children's Justice Task Force/proposal to change SCRE 404 to incorporate Federal Rules of Evidence 413 and 414, making it easier to get in more evidence in child molestation cases where the defendant was guilty of bad acts. Mr. Brown reported that subcommittee had looked into the matter and Mr. Day had reported during the September meeting that he would move for the subcommittee to take no action and the matter was stricken from record.
Next Meeting: The next meeting would be scheduled by the Chair for February.
Adjournment: There being no further business, Mr. Brown adjourned the meeting.