Rule 5 - Filing of Responses to Requests for Admission Under FRCP 5(d)(1), an attorney is prohibited from filing written discovery requests and responses thereto until “they are used in the proceeding or the court orders [their] filing.” Ark. R. Civ. P. 5(c) is similar but different in one key respect: Requests for Admission and responses thereto must be filed in Arkansas state court actions, and the result of not doing so can be quite harsh.1 Rule 6 - Computing Time Under ARCP 6(a), when computing deadlines less than 14 days, intermediate Saturdays, Sundays, or legal holidays shall be excluded. Under FRCP 6(a)(1), when computing deadlines in days, intermediate Saturdays, Sundays, and legal holidays are included. Though “legal holidays” under the federal and state systems do not mirror one another (e.g., the birthday of an attorney employed with the state of Arkansas is a legal holiday under Ark. Code Ann. § 1-5-101(a) (11)), both sets of legal holidays are incorporated into each set of rules.2 Rule 7.1 - Corporate Disclosure Statement FRCP 7.1 mandates that nongovernmental corporate parties file a disclosure statement with their first filing or request addressed to the court. There is no such requirement in the Arkansas Rules of Civil Procedure. Rule 8 - Pleading Standard One of the most important differences between the Federal Rules of Civil Procedure and the Arkansas Rules of Civil Procedure is found in Rule 8(a). FRCP 8(a)(2) merely requires a pleading that states a claim for relief to “contain a short and plain statement of the claim showing that the pleader is entitled to relief.” In contrast, ARCP 8(a) requires such a pleading to “contain a statement . . . of facts showing . . . that the pleader is entitled to relief.” The former is commonly classified as “notice pleading,” while the latter is commonly classified as “fact pleading.” Not observing the more stringent fact pleading standard can lead to a bad outcome for the pleader in an Arkansas state court action.3
Rule 10 - Required Exhibits ARCP 10(d) states that “[a] copy of any written instrument or document upon which a claim or defense is based shall be attached as an exhibit to the pleading in which such claim or defense is averred unless good cause is shown for its absence in such pleading.” The word “shall” in Rule 10(d) indicates that compliance with the rule is mandatory and that not complying with ARCP 10(d)’s requirement may contribute to an undesirable outcome for the claimant.4 The Federal Rules of Civil Procedure do not mandate the attachment of any exhibit to a pleading. Rule 15 - Amending a Pleading Under ARCP 15(a), a party may amend his pleading at any time without leave of court. It is not so easy in federal court. Under FRCP 15(a)(1), a party may only freely amend his pleading within: (1) “21 days after serving it”; or (2) “if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Otherwise, a party “may amend its pleading only with the opposing party’s written consent or the court’s leave.” Under ARCP 10(c), a state court litigant’s amended pleading may adopt by reference statements in a prior pleading. Such practice is specifically prohibited by Local Rule 5.5(e) of the Local Rules for the Eastern and Western Districts of Arkansas, a rule that also imposes additional filing requirements not found in ARCP. In short, amending a pleading in federal court is often much more cumbersome than amending a pleading in state court. Rule 26 - Initial Disclosures FRCP 26(a)(1)(A) mandates the service of initial disclosures in most civil cases. There is no such requirement in the Arkansas Rules of Civil Procedure.
Rule 26 - Discoverability of Documents in Possession of Retained Expert Witnesses Often, when a testifying expert is retained, there will be written communications between the expert and trial counsel, and it is not unusual for the expert to create various drafts of his or her written expert report. These sorts of documents are generally afforded protection from discoverability under FRCP 26(b)(4)(B) and (C). There are no similar protections specifically afforded under the Arkansas Rules of Civil Procedure. An attorney who has a “one size fits all” way of interacting and communicating with retained expert witnesses in both federal and state court actions does so at his or her own peril. Rules 30, 33, 34 - Commencement of Discovery Under FRCP 26(d)(1), civil litigants normally may not commence discovery until after their Rule 26(f) conference has occurred. There is no equivalent line in the sand under the Arkansas Rules of Civil Procedure. Generally, depositions may be taken in state court cases anytime after the expiration of 30 days after service of the summons and complaint upon any defendant.5 Interrogatories and requests for production of documents may be served upon a defendant at the same time the summons and complaint are served.6 Interrogatories and requests for production of documents may be served on a plaintiff after a complaint is filed.7 Rule 38 - Right to a Jury Trial Another of the most important differences between the Federal Rules of Civil Procedure and the Arkansas Rules of Civil Procedure is found in Rule 38. FRCP 38(b) requires a party to make any demand for a jury trial by serving and filing such a demand “no later than 14 days after the last pleading directed to the issue is served.” Typically, the “last pleading directed to such issue” is the answer.8 Woe to the attorney
Vol. 50 No .1/Winter 2015 The Arkansas Lawyer
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