Search 

Azcourts.gov

Arizona Judicial Branch



FAQ

Register       Login

ATTENTION: This site has been recently moved. If you had an account on our old forum site, you will have to register a new account here in order to be able to post replies.

 

NEW! The Court acted on many pending rule petitions at its August 29, 2017 Rules Agenda.  

Click on the Amendments from Recent Rules Agendas link below to go directly to the amendments and orders for each one.

Message from the Chief Justice

Current Arizona Rules 

Amendments from Recent Rule Agendas

Rule Amendments (2006 to present) 

Advisory Committee on Rules of Evidence


Pending Rules List

         Proposed Local Rules
                 Welcome!
This website allows you to electronically file and monitor court rule petitions and comments and to view existing rules of court, recent amendments of those rules, and pending rule petitions and comments. Any visitor to this site may view posts on this website, but to post a petition or comment you must register and log in. To view instructions on how to register and how to file a petition or comment, please visit our Frequently Asked Questions (FAQ) page. 
PrevPrev Go to previous topic
NextNext Go to next topic
Last Post 21 May 2012 04:20 PM by  Gary.Dukarich
R-11-0017 Ariz. R. Civ. P. 26(b)(4)
 2 Replies
Sort:
Topic is locked
Author Messages
jdsmith
Posts:

--
06 Apr 2011 10:50 AM
    R-11-0017
    PETITION TO AMEND RULE 26(b)(4), ARIZ. R. CIV. P.

    Would conform Arizona rule to Rule 26(b)(4), Fed. R. Civ. P., to provide work product protection for most communication with expert witnesses.

    Petitioner:
    James D. Smith
    State Bar No. 016760
    2 N. Central Ave.
    Suite 2200
    Phoenix, AZ 85004
    Phone: 602-364-7000
    Facsimile: 602-716-8011
    jdsmith@bryancave.com

    Filed April 6, 2011.

    Comments Due May 21, 2012.

    Rejected 8/28/2012
    Attachments
    AZStateBar
    Posts:

    --
    03 Apr 2012 09:05 AM
    John A. Furlong, Bar No. 018356
    General Counsel
    State Bar of Arizona
    4201 N. 24th Street, Suite 100
    Phoenix, Arizona 85016-6266
    602.252.4804
    John.Furlong@staff.azbar.org
    Attachments
    Gary.Dukarich
    Posts:

    --
    21 May 2012 04:20 PM
    Gary Dukarich
    P.O. Box 14086
    Tempe, AZ 85284-0069
    (602) 288-3325
    gdukarich@sle-law.com
    Bar No. 012119

    I support the petition to amend Arizona Rule of Civil Procedure 26(b)(4). Although admittedly anecdotal, my own experience has been that the corresponding federal amendment has beneficially streamlined expert practice, as it recognizes the realities of an expert’s role. I use that latter phrase without a trace of cynicism. Experts actually sit somewhere between the rhetorical poles of “[impartial] witnesses” and “additional advocates for their clients” postulated in the State Bar’s comment on this amendment. In a complex, technical age, that is just where litigants and the legal system need them to sit, and not one juror is confounded by the fact that the plaintiff’s expert espouses ideas consistent with the plaintiff’s position while the defendant’s expert espouses ideas consistent with the defendant’s position.

    The State Bar’s comment does an admirable job of outlining the arguments on both sides. Only two of those arguments are further commented on here, the first and fourth cited arguments against the petition.

    The first cited argument deserves additional comment since it reflects uniquely on Arizona practice. The argument that guarding internal expert materials runs counter to the expansive Arizona disclosure system as reflected in Arizona Rule of Civil Procedure 26.1 properly appeals to our local achievements, but is specious. The amendment is not in fact contrary to the policies of the Arizona disclosure system. Despite its salutary breadth, Rule 26.1 of course does not anticipate that any internal privileged or work product material should or world be part of its disclosure, and the internal expert materials within the ambit of the amendment fall closer toward that category, as is recognized in the federal amendment. As to this aspect of expert practice, then, there is no conflict between the federal and the Arizona circumstances, and no disgrace in following the federal lead.

    The fourth cited ground is significant because it is as much concession as argument. To reason that a pretense should be continued because new technology makes it easier for the reality to defy that pretense, is to concede that what we are dealing with here is just that, pretense and reality. There are concrete practical benefits to moving beyond the pretense, and, if I may borrow from Rule 54(b), there is no just reason for delaying those benefits.
    Topic is locked