Mastering Motions to Compel

Celia C. Elwell, the Researching Paralegal, recently pointed to an excellent article in the ABA Journal entitled “6 Keys to Acing Discovery.” The article focuses on preparing for and arguing motions to compel. Post author, Katherine A. Hopkins, cites the following as keys to success:

  1. Avoid canned briefs
  2. Research the court procedures
  3. Research the judge hearing your motion
  4. Research opposing counsel
  5. Make the judge’s life easy
  6. Finally, don’t be a jerk

Read the full article here.

Your first reaction may be: this sounds like a lot of work for a “simple” motion to compel. Perhaps it is. On the other hand, research is something you only need to do once. If you’re in a firm or have a network of fellow practitioners, it should be easy to make a few phone calls about an unfamiliar judge or opposing counsel.

Knowing the court procedures? You better know the court procedures! If it’s been a while or you are new to a particular judicial district in Oregon, start with the OJD Rules Center. Scroll the page to find UTCRs, SLRs, and “other rules,” including the Oregon Rules of Civil Procedure. If you are a Multnomah County practitioner, the new updated 2018 Attorney Reference Manual is now available on the Multnomah Bar Association website. Get it toot sweet!

I can heartily vouch for the tips about making the judge’s life easy and not being a jerk. No one likes the latter. Don’t take the bait if the other side is contentious. Keep your cool and your reputation intact.

As for the judge, put yourself in his/her position. A straightforward, well-organized motion with clearly marked exhibits is a great start. Your argument should be the same.

All Rights Reserved 2018 Beverly Michaelis

Changes Coming to Oregon eCourt

Two important changes are coming to Oregon eCourt beginning Monday, November 16:

Documents Submitted for Signature by the Court

Beginning November 16, 2015 all circuit courts using the eCourt system will electronically affix the name and title of the individual signing a document below the signature line.

All documents submitted to the court for signature must comply with UTCR 21.040(3):

  • Leave a blank space of not less than 1.5 inches.
  • Create a blank signature line following the last line of text.
  • Do not include a title or name underneath the line.  Specifically, do not add “Circuit Court Judge.”
  • Update your pleading templates to conform to the rule.
  • Follow this example:

10-23-2015 8-39-29 AM

Direct questions to: Daniel Parr, OJD Communication and Outreach Manager at daniel.parr@ojd.state.or.us.

Expansion of Electronic Notifications – Case Management System to Generate Notices of Orders Entered

Beginning Monday, November 16, 2015 all circuit courts using the eCourt system will notify attorneys by email when orders are entered on their cases.

This is a long-awaited improvement to the Oregon Judicial Department (OJD) case management system.  Here are the details shared by OJD:

How does it work?

When the court enters an order in the register of actions, the case management system will generate and email a notice to all attorneys on the case. The email will be sent to the email address where the attorney already receives notices of hearings and trials.

What do I need to do?

No action is required. If you are receiving notifications when hearings and trials are set then beginning November 16, 2015 you will start receiving notices regarding entry of orders. The system will send the email from Court_Notification@ojd.state.or.us. Make sure this email address is whitelisted in your email settings. If you need notifications to be directed to others within your office look into the option of auto-forwarding through your email provider.

Does the email include the signed order?

No, the email will only include a basic court notice form telling you the case number and what order was signed, based on how the order is entered in the register of actions (such as Order – Show Cause). To access the signed order, you will need to either access the case through the Oregon eCourt Case Information (OECI) system over the internet through an online subscription or otherwise go to the courthouse and access the case through a court terminal. More information about subscription services to OECI can be found here.

Will I be notified when other documents are entered into the system?

Not at this time. On November 16 attorneys will only be notified when orders are entered. OJD is evaluating expanding the capacity for similar notifications in the future.

Provided courtesy of Daniel Parr, OJD Communication and Outreach Manager

 

Oregon Civil Procedure – Amendments Coming to UTCR 5.100

Out-of-cycle amendments are coming to UTCR 5.100, which governs submission of proposed orders and judgments.  The amendments will affect conventional filers and eFilers, but are designed to address the following concerns raised by judges who sign proposed orders and judgments using the new eCourt system:

  • It is difficult, if not impossible, to know whether proposed orders or judgments are ready for judicial signature;
  • A sufficient and uniform time period to object to proposed orders or judgments is presently lacking;
  • Opposing parties need clear instructions on how to object to proposed orders or judgments; and
  • Protocols are necessary to ensure that parties work to resolve objections before submitting disputed orders and judgments.

For clarity, the proposal to amend UTCR 5.100 breaks the rule up into three parts:

Service

“As amended, the service component … requires service on the opposing party, and an opportunity for objection, as to any proposed order or judgment unless an exception applies. The rule is no longer limited to only those proposed orders and judgments submitted “in response to a ruling of the court.” The purpose of the updated wording is to ensure that the opposing party has a reasonable opportunity to object. The service component also sets out specific notice requirements and lengthens the time between service and submission.”  Read more here.

Objection

The objection component is new and requires service of a written, dated, and signed objection within 7 days of the date that the proposed order or judgment was sent to the opposing party.  If an objection is served by the opposing party, the drafting party must make a reasonable effort to resolve the objection before submitting the proposed order or judgment to the court. However, opposing parties are also permitted to file objections directly with the court.

Practice Tip:  Opposing parties who file an objection directly with the court are required to include in the caption “Objection to Proposed [Order/Judgment]” and must describe the nature of the proposed order or judgment.  If the opposing party requests oral argument, the request must be stated in the caption.

More details are available here.

Submission

The submission component:

  • Retains the Certificate of Service requirement
  • Adds a “Certificate of Readiness” requirement
  • Clarifies that a proposed order or judgment may be submitted sooner than the 7-day period for objection, if:
    • the opposing party has stipulated to or approved the order or judgment, or
    • the opposing party has objected and the objections are resolved or ready for resolution.

The “Certificate of Readiness” certifies that the proposed order or judgment is ready for judicial signature or that objections are ready for resolution, and provides the “readiness” reason.  It will eliminate the need for judges to access multiple documents in the eCourt system to ensure that a proposed order or judgment is ready for signature.

Practice Tip:  UTCR 5.100(3)(c) sets out the language to be used in a “Certificate of Readiness.”  Filers are required to use substantially the same form.  When the rule is adopted, maximize efficiency by copying and pasting the “Certificate of Readiness” language into a template that you can re-use each time you submit a proposed Order or Judgment.

Read more here.

This is the second go-around in the proposed amendment process for UTCR 5.100.  Public comment on proposed revisions will be accepted until August 17.  Since the intention is to amend the rule out-of-cycle, expect an effective date around or before September 1.

[All Rights Reserved Beverly Michaelis 2015]

Oregon eCourt – Where are we now?

Judging by the numbers, Oregon eCourt is a success.  In February, March, and April of this year an average of 65,666 documents were filed electronically using the Odyssey eFile and Serve system:  efilings 2015Easy-Peasy or a Bumpy Ride?

The transition from paper-based filing to eFiling hasn’t been easy.

A record number of Oregon lawyers went inactive or resigned from the bar in December 2014/January 2015, leading some to speculate that mandatory eFiling drove veteran members to retire sooner than originally planned.

Why might that be?  eFiling requires an investment of time and money. To succeed, eFilers need to know the rules, understand the technology, subscribe to OJIN/OJCIN, and buy a decent scanner and PDF conversion software.

Rejection Rates

For those who persevered, kudos to you!   Of the 197,000 filings in February, March, and April of this year, less than 10% were rejected.  Bottom line: Oregon lawyers [or their staff] are getting it right.

New Policy and Standards for Acceptance of Electronic Filings

Effective July 1, 2015 Chief Justice Balmer signed Chief Justice Order 15–026, which adopts the OJD Policy and Standards for Acceptance of Electronic Filings in the Oregon Circuit Courts [dated May 22, 2015]:

Statewide standards for the acceptance of electronic filings are intended to provide clear consistent guidance to practitioners and courts on the proper use of the OJD eFiling system (File and Serve). The standards are grouped into two broad categories: (1) how to properly use the system from a technical perspective to ensure acceptance of eFiled documents, and (2) compliance with Uniform Trial Court Rules (UTCR) Chapter 21 or ORCP 9E.

These standards will help educate eFilers on the correct usage of File and Serve to provide them with a high quality experience, support consistent statewide messages to accompany returned electronic filings with instructions on how to cure the error, and allow the Oregon Judicial Department (OJD) and eFilers to achieve the full benefits of an electronic filing system.

The policy and standards are available here.

New Supplemental User Guide for eCourt

OJD has also released a new Supplemental User Guide.  This document provides descriptions of the most common mistakes made by eFilers and step-by-step directions for fixing them.  It is a must-read for all lawyers and staff who use the Odyssey eFile and Serve system.

Free Training for Odyssey eFile and Serve

You can still sign up for free training Webinars with Odyssey eFile and Serve. Tyler Technologies, the vendor for Odyssey eFile and Serve, offers both recorded and live sessions here.

UTCR Amendments Coming

Next week, I will review the proposed amendments to UTCR 5.100, which affect orders and judgments.

[All Rights Reserved Beverly Michaelis 2015]

Oregon eCourt: eFiling UTCRs Amended

On September 29, 2014, the following Uniform Trial Court Rules (UTCRs) were amended out-of-cycle pursuant to Chief Justice Order 14-049: UTCR 21.040, 21.050, 21.070, 21.080, 21.090, 21.100, and 21.120.  The changes are summarized below:

UTCR 21.040(2)

Simplifying the rules for filing documents:

“When a document to be electronically filed includes one or more attachments, including but not limited to a documentary exhibit, an affidavit, or a declaration, the electronic filing must be submitted as a unified single PDF file, rather than as a separate electronically filed documents, to the extent practicable. An electronic filing submitted under this section that exceeds 25 megabytes must comply with subsection (1) of this rule.” Also see UTCR 21.040(2)(c).

[Former UTCR 21.040(2) described a complex filing scheme with different rules for specific types of documents: motions to strike, motions for leave to amend, attachments to a petition for post-conviction relief, attachments to a Uniform Support Declaration.  Under revised UTCR 21.040(2) all filings are unified by default.  Over-size files must still be split.  Stand-alone affidavits or declarations are filed separately.  Otherwise, if they are attachments to another document, the entire document – along with its attachments – is filed as one unified PDF.]

UTCR 21.040(2)(a) and UTCR 21.040(3)

Adding new requirements regarding submission of electronic filings requiring court signature:

  • Orders, judgments, or other documents requiring court signature must be submitted separately from motions.
  • Filers must include appropriate information in the filing comments field for each submission. For example: “Motion for Summary Judgment” and “Proposed Order Granting Motion for Summary Judgment.”
  • Any electronically submitted document that requires a court signature must include a blank space “of not less than 1.5 inches and a blank line following the last line of text” to permit the court to affix a signature and signature date.

UTCR 21.040(2)(b)

Adding new requirements regarding submission of electronic filings that include confidential attachments:

  • If an electronic filing is not confidential but includes an attachment that is confidential (or exempt from disclosure), submit the attachment separately.
  • Filers submitting a confidential attachment must select the “confidential check box” after attaching the confidential document.
  • Filers must include appropriate information in the filing comments field for each submission. For example: “Motion for Stay” and “Confidential Attachment to Motion for Stay.”

UTCR 21.040(2)(c)

Clarifying requirements for filing affidavits and declarations:

  • Documents that include affidavits and declarations as attachments must be submitted as a unified single PDF under UTCR 21.040(2).
  • Affidavits and Declarations that are stand-alone documents (not an attachment to another document) are filed separately.

UTCR 21.070(3)(d)

Clarifying that motions for remedial contempt must be conventionally filed because they are created as new “criminal-base-type” cases in the eFiling system.

UTCR 21.070(3)(g) [Removed]

Permitting eFiling of amended pleadings that require payment of an additional filing fee.  Former UTCR 21.070(3)(g) required conventional filing of such documents. Also see UTCR 21.050(1) above.

UTCR 21.070(3)(l)

Adds petitions or motions for waiver of the mandatory eFiling requirement to the list of  documents that must be filed conventionally.

UTCR 21.070(3)(m)

Adds stipulated or ex parte matters listed in SLR 2.501 to the list of documents that must be filed conventionally. See Adoption of Oregon eCourt SLR Chapter 24 below.

UTCR 21.080(6)

Adds a new provision permitting relation-back of filings due to system unavailability, errors in transmission, or other technical problems that prevent the eFiling system from receiving a document.

UTCR 21.090 and 21.100

Housekeeping changes only, updating references to “subsections and “sections” for consistency throughout UTCR Chapter 21.

UTCR 21.120

Reducing the retention period of documents that contain the original signature of a person other than the filer from 10 years to 30 days.

Adoption of Oregon eCourt SLR Chapter 24

As part of going live with Oregon eCourt, a judicial district adopts uniform “Oregon eCourt” SLR Chapter 24. As a companion to new UTCR 21.070(3)(m), each court’s SLR Chapter 24 – 24.501 – will be updated to permit courts to adopt an SLR (2.501) that lists certain stipulated/ex parte matters that must be presented conventionally in that court, instead of eFiled. The SLR update will be part of the SLR chapter for Josephine, Marion, and Douglas Counties when they roll out Oregon eCourt in December 2014, and otherwise in the existing eCourt counties as they do the annual adoption of their SLRs. It provides as follows:

24.501 STIPULATED OR EX PARTE MATTERS MAY BE ELECTRONICALLY FILED

(1) Except as provided in subsection (2) of this rule, any stipulated or ex parte matter may be electronically filed for purposes of submitting to a judge for signature.

(2) SLR 2.501 is reserved for judicial districts to adopt a local rule regarding specific stipulated or ex parte matters for which the documents must be presented conventionally and may not be electronically filed.

[All Rights Reserved 2014 Beverly Michaelis]