Sometimes, annual changes to Arizona’s Rules of Civil Procedure are minor. Sometimes times they are major. The 2023 amendments appear to be the former. This article discusses the changes to rules which we at Thomas Rubin & Kelley use in our litigation practice: Rules 16, 30, 32, and 47.
Rule 16 and 47 – Voir Dire
Effective on January 1, 2022, the Arizona Supreme Court abrogated the rules of procedure for criminal cases, eviction matters, and civil cases that had previously granted parties peremptory strikes of jurors. At the same time, the Arizona Supreme Court adopted rules that encouraged expanded voir dire, expanded the use of juror questionnaires, and slightly modified the rule regarding challenges for cause. Since the beginning of 2022, Rule 47 now requires (unless the court orders otherwise) prospective jurors to complete case-specific written questionnaires. It also requires parties to either destroy or return the case specific written questionnaires to the court after jury selection has concluded.
To deal with the competing interests between the confidentiality of completed questionnaires and rights to maintain work product, the Court made some minor changes to Rule 47(b)(3). Effective on January 1, 2023, Rule 47(b)(3) now allows counsel for either party to retain copies of case-specific written questionnaires in their case files, if they contain work product. An amendment to Rule 16(f) which became effective in 2023 also now gives courts discretion on when the parties must file their requested written questionnaires.
With the removal of peremptory strikes, the 2022 amendments required the court to permit, when feasible, “liberal and comprehensive examination by the parties [and to] refrain from imposing inflexible limits on voir dire.” This amendment led to concerns that the court’s authority to manage voir dire was being diminished. To clarify the Court’s role as a gatekeeper, effective January 1, 2023, Rule 47(c)(5) now includes a subpart providing that “[t]he court retains the discretion to manage voir dire, including to preclude improper, excessive, or abusive questioning.”
Of course, removal of peremptory strikes has created scrutiny of court rulings on challenges for cause. As of the beginning of this year, a court must now state on the record the reasons for its ruling regarding all challenges for cause. Moreover, the 2023 version of Rule 47 allows the Court to excuse a prospective juror for cause if the parties stipulate that “in their good faith belief, the prospective juror cannot render a fair and impartial verdict.” To be clear, however, courts need not accept stipulations. Doing so is discretionary. Based on the 2023 amendments, it now appears that if a court rejects a stipulation regarding excluding a juror for cause, it must state on the record the basis for this rejection.
Rules 30 and 32 - Video depositions
Previously, Rule 30 required parties noticing depositions to state if the deposition was being recorded by audiovisual means, and if so, to state the location of the camera. This led to many “do-it-yourself” attorneys making video recordings of depositions on a camcorder or tablet. Because Rule 32 generally allows depositions to be used at trial, conflicts arose out of attorney-recorded depositions relating to the quality of the video, custody of the footage, and complaints about placement of the microphone or camera. These issues rarely arise when the deposition is recorded by an independent videographer. To address this issue, effective January 1, 2023, Rule 30(b)(3)(B) now requires that if a deposition will be recorded by video, the “notice must state the method and manner of audiovisual recording and the person or company that will conduct such recording.” This requirement will now give the non-noticing attorney a heads up that a deposition will be self-recorded. The advance notice of self-recording will afford parties the opportunity to mitigate potential quality issues caused by self-recording. Indeed, they can consult with opposing counsel or counter-notice the deposition and bring an independent video-recording service to the deposition in addition to the device used by the “do-it-yourself” attorney. Indeed, although Rule 32 was modified to require that as of January 1, 2023, the camera to squarely face the witness and avoid depicting other persons, these meager requirements will do little to preserve the quality of self-recorded depositions. Bringing an independent video-recording service to self-recorded depositions will be the best way to avoid quality and custody issues.
On that note, Rule 32(d) was also amended, effective January 1, 2023, to clarify that a party who objects to the method of a deposition being recorded need not counter-designate an additional method of recording to maintain the its objection. In other words, a party who objects to self-recording need not bring an independent videographer to the deposition to maintain its objection to the self-recording of the deposition.
The attorneys at Thomas Rubin & Kelley are well-versed in civil litigation. If you require any assistance with any of your Arizona claims, please do not hesitate to contact Brian Rubin (brubin@trkfirm.com) or Michael Kelley (mkelley@trkfirm.com).