Changes to Arkansas Rules of Civil Procedure, Matter of
| Decision Date | 20 November 1989 |
| Parties | In the Matter of CHANGES TO THE ARKANSAS RULES OF CIVIL PROCEDURE. |
| Court | Arkansas Supreme Court |
The Arkansas Supreme Court Committee on Rules of Pleading, Practice, and Procedure (Civil) has submitted its annual suggestions for changes in the rules. We adopt the suggested changes which follow. They will become effective January 1, 1990. We also adopt the suggestion of the committee that its name be changed to "Arkansas Supreme Court Committee on Civil Practice."
Comments and suggestions with respect to the rules are welcome and may be made directly to this court. They may also be made by letter to the committee reporter at the following address:
Professor John J. Watkins
Leflar Law Center
Waterman Hall
University of Arkansas
This court continues to appreciate the hard work and dedication of the committee and expresses its thanks to the chairman, Judge Henry Wilkinson, the reporter, Professor John J. Watkins, and the members of the committee who give of their time and talent to keep our procedural rules current. Rule 4, Ark.R.Civ.P.
Rule 4(c), Arkansas Rules of Civil Procedure, is amended by deleting subdivision (3) and by redesignating subdivision (4) as subdivision (3).
The following amendment to the Reporter's Note accompanying Rule 4 is adopted:
Addition to Reporter's Note, 1989 Amendment: Rule 4(c) is amended by deleting a provision that permitted service of process by any person not less than eighteen years of age who is not a party. The change was made to assure adequate judicial control over persons who serve process.
Rule 5(b), Arkansas Rules of Civil Procedure, is amended by adding at the end thereof the following sentence:
Where service is permitted upon an attorney under this rule, such service may be effected by electronic transmission, provided that the attorney being served has facilities within his office to receive and reproduce verbatim electronic transmissions, or such service may be made by a commercial delivery service which maintains permanent records of actual delivery.
The following amendment to the Reporter's Note accompanying Rule 5 is adopted:
Addition to Reporter's Note, 1989 Amendment: Rule 5(b) is amended to make clear that service upon an attorney under the rule is permitted by "fax" machine or by commercial delivery service, as well as by mail. This recognition of "new technology" is consistent with Act 58 of 1989, which permits a court clerk to accept pleadings filed via fax machine.
Rule 28(c), Arkansas Rules of Civil Procedure, is amended by deleting the words "States or" in the introductory phrase that serves as a title; deleting the words "another state or" in the first sentence and inserting in lieu thereof the word "a"; and deleting the words "commission or" in the first sentence.
The following amendment to the Reporter's Note accompanying Rule 28 is adopted:
Addition to Reporter's Note, 1989 Amendment: Rule 28(c) is amended to apply only to the taking of depositions for use in judicial proceedings in foreign countries. Rule 45(f), as amended in 1989, now governs the taking of depositions for use in proceedings in other states.
Rule 32(a)(4), Arkansas Rules of Civil Procedure, is amended by deleting the words "and filed" from the second paragraph and by adding the following sentence at the end of the second paragraph:
a deposition previously taken may also be used as permitted by the Arkansas Rules of Evidence.
The following amendment to the Reporter's Note accompanying Rule 32 is adopted:
Addition to Reporter's Note, 1989 Amendment: As initially adopted, the second paragraph of Rule 32(a)(4) provided that a prior action must have been dismissed before depositions taken for use in it could be used in a subsequent action. The 1989 amendment permits the use of a deposition from a prior action to the extent allowed by the Rules of Evidence. The corresponding federal rule was so amended in 1980. In addition, the 1989 amendment eliminates the requirement that a deposition taken in a prior action must have been filed in order for it to be used in a subsequent action. This change is consistent with Rule 5(c), which, as amended in 1984, does not require that depositions be filed as a matter of course.
Rule 45, Arkansas Rules of Civil Procedure, is amended as follows:
1. By deleting subdivision (a) of the rule and replacing it with the following:
(a) Form and Issuance. Every subpoena shall be issued by the clerk under seal of court, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to appear and give testimony at the time and place therein specified.
2. By deleting the word "properly" in subdivision (b) of the rule and replacing it with the word "promptly."
3. By deleting the word "and" appearing between the words "unreasonable" and "oppressive" in subdivision (b)(1) of the rule and replacing it with the word "or."
4. By deleting subdivision (c) of the rule and replacing it with the following:
(c) Service. A subpoena for a trial or hearing or for a deposition may be served at any place within this State in the manner prescribed in this subdivision. A subpoena for a trial or hearing or for a deposition may be served by the sheriff of the county in which it is to be served, by his deputy, or by any other person who is not a party and is not less than eighteen (18) years of age. Service shall be made by delivering a copy of the subpoena to the person named therein; provided, however, that a subpoena for a trial or hearing may be served by telephone by a sheriff or his deputy when the trial or hearing is to be held in the county of the witness' residence. A subpoena for a trial or hearing or for a deposition may also be served by an attorney of record for a party by any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or agent of the addressee.
5. By deleting subdivision (d) of the rule and replacing it with the following:
(d) Subpoena for Trial or Hearing. At the request of any party the clerk of the court before which the action is pending shall issue a subpoena for a trial or hearing, or a subpoena for the production at a trial or hearing of documentary evidence, signed and sealed, but otherwise in blank, to the party requesting it, who shall fill it in before service. A witness, regardless of his county of residence, shall be obligated to attend for examination on trial or hearing in a civil action anywhere in this State when properly served with a subpoena at least two (2) days prior to the trial or hearing. The court may grant leave for a subpoena to be issued within two (2) days of the trial or hearing. The subpoena must be accompanied by a tender of a witness fee calculated at the rate of $30.00 per day for attendance and $0.25 per mile for travel from the witness' residence to the place of the trial or hearing. In the event of telephone service of a subpoena by a sheriff or his deputy, the party who caused the witness to be subpoenaed shall tender the fee prior to or at the time of the witness' appearance at the trial or hearing. If a continuance is granted and if the witness is provided adequate notice thereof, re-service of the subpoena shall not be necessary. Any person subpoenaed for examination at the trial or hearing shall remain in attendance until excused by the party causing him to be subpoenaed or, after giving testimony, by the court.
6. By deleting subdivision (e) of the rule and replacing it with the following:
(e) Subpoena for Taking Depositions: Place of Examination. Upon the filing of a notice of deposition upon oral examination pursuant to Rule 30(b), the clerk of the court in which the action is pending shall, upon the request of the party giving notice, issue a subpoena in accordance with the notice. The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain matters within the scope of the examination permitted by Rule 26(b), but in that event the subpoena will be subject to the provisions of Rule 26(c) and subdivision (b) of this rule. The witness must be properly served at least five (5) business days prior to the date of the deposition, unless the court grants leave for subpoena to be issued within that period. The subpoena must be accompanied by a tender of a witness fee calculated at the rate of $30.00 per day for attendance and $0.25 per mile for travel from the witness' residence to the place of the deposition.
The person to whom the subpoena is directed may, within ten (10) days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than ten (10) days after service, serve upon the attorney causing the subpoena to be issued written objection to inspection or copying of any or all of the designated materials. If objection is made, the party causing the subpoena to be issued shall not be entitled to inspect and copy the materials except pursuant to an order of the court before which the deposition may be used. The party causing the subpoena to be issued may, if objection has been made,...
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