Significant Differences Between Arizona and Federal Civil Procedure William G. Klain, Chair, Committee on Civil Practice and Procedure, State Bar of Arizona, 2011-2012

When serving as Arizona local counsel for out-of-state litigators, the comments I offer as to the distinctions between the Arizona Rules of Civil Procedure (“the Arizona Rules”) and the Federal Rules of Civil Procedure (“the Federal Rules”) are invariably met with a measure of surprise.

In many respects, the two sets of Rules are very similar, as the Arizona Rules were patterned after the Federal Rules. Indeed, when interpreting the Arizona Rules, in the absence of controlling case law to the contrary, the Arizona courts view federal decisions construing the Federal Rules as persuasive authority. Nevertheless, any civil litigator practicing in Arizona’s courts for the first time would be well-served by taking note of a few critical differences between the Arizona Rules and the Federal Rules with which they are likely more familiar. Rather than representing any comprehensive comparison of the Arizona Rules and Federal Rules, what follows is a brief discussion of several significant instances where the two diverge likely to arise during the course of virtually any civil matter.

Disclosures. Perhaps the most striking example of Arizona’s departure from the Federal Rules is found in the disclosure process. Litigators (and clients) accustomed to the relatively scant disclosure requirement of Federal Rule 26(a)(1)(A) may be uncomfortable with the wide-ranging substance that must be disclosed under Arizona Rule 26.1(a). Beyond the four categories of information specified under the Federal Rule (i.e., persons having relevant knowledge and substance thereof, copies of trial exhibits, computation of damages, and insurance agreements), the Arizona Rules require disclosure of:

• a statement of the factual basis of the claim or defense,

• the legal theory of each claim or defense,

• all trial witnesses and their anticipated testimony,

• the names of all persons who have given statements,

• expert witness identification, qualifications and opinions, and

• lists of all relevant documents known to exist.

Discovery. With respect to discovery, the Arizona Rules employ limitations not found in their federal counterparts. For instance:

Under the Federal Rules, depositions are presumptively limited to 10 per side. However, under the Arizona Rules, absent a stipulation or order entered on a showing of good cause, a party may depose only other parties, experts and custodians of records. Moreover, absent a stipulation or court order, the length of a deposition in a federal case is limited to one day of seven hours of testimony. Under the Arizona Rules, depositions are presumptively limited to four hours of testimony. During a deposition taken under the Federal Rules, objections (including the precise basis for objection) must be stated concisely. Objecting in this manner is improper under the Arizona Rules, which prohibit specifying the defect in the form of a question to which objection is made unless requested by the questioning party.

While there is no limit on the number of document requests a party may make under the Federal Rules, the Arizona Rules contain a presumptive limit of 10 requests for documents or categories of documents to be produced. Similarly, the Federal Rules impose no limit on the number of requests for admissions that may be served in a case, whereas the Arizona Rules limit each party to 25 requests for admissions. However, in the single instance where the Federal Rules appear more restrictive with respect to discovery than the Arizona Rules, federal litigants are limited to 25 interrogatories, whereas Arizona litigants are limited to any combination of 40 non-uniform and uniform interrogatories. Finally, the typical response time applicable to written discovery requests made under the Federal Rules is 30 days from service. Under the Arizona Rules, 40 days are afforded.

Compulsory Arbitration. In Arizona, all civil suits exclusively seeking monetary damages below jurisdictional thresholds set on a county-by-county basis are subject to what is referred to as “mandatory” or “compulsory” arbitration. Thus, in Maricopa County (where Phoenix is situated), if no non-monetary relief is sought and the amount in controversy does not exceed $50,000, the matter will be automatically referred to arbitration.

Arbitrators are selected at random from the pool of all attorneys practicing in the County for a specified number of years. Except for rulings on case-dispositive motions and certain other listed matters, the arbitrator makes all pre-hearing rulings, conducts an arbitration hearing on a fairly expedited basis, and enters an arbitration award. While a de novo appeal may be taken from any award entered in a case subject to compulsory arbitration, if the appealing party does not obtain a trial result that is at least 23% more favorable than the award, the appealing party is subject to sanctions in the form of liability for the other party’s costs and fees incurred on appeal.

Juries. The Arizona Rules assume a jury size of eight jurors but permit the parties to stipulate to a jury of not less than three. If a jury of eight jurors is impaneled, the concurrence of six jurors is sufficient to render a verdict. Conversely, the Federal Rules require a jury of not less than six and not more than 12 jurors, with unanimity required for verdict. Additionally, Arizona’s jury pool is drawn from voter registration and driver’s license rolls, whereas federal jury pools are drawn exclusively from voter registration rolls.

Expert Witnesses. A final and important example of how Arizona and federal civil practice and procedure differ is found in the standards for admissibility of expert testimony. In federal court, litigants are subject to the Daubert standard, under which the trial judge acts as a “gatekeeper” by making a preliminary assessment of scientific validity of the expert’s reasoning and/or methodology. Conversely, in its Logerquist decision, the Arizona Supreme Court rejected the Daubert standard, leaving expert testimony admissibility in the Arizona courts controlled by the now-rejected federal Frye standard.

Conclusion. As mentioned earlier, this discussion is not intended to be an exhaustive treatment of the differences between Arizona and Federal procedure. Rather, the above examples are intended to highlight some of the more striking distinctions between the two. Any non-Arizona attorney intending to litigate a matter in Arizona’s courts should resist the temptation to rely on familiarity with the Federal Rules and, instead, educate him- or herself on Arizona procedure and engage local counsel.