Appeals - materials under seal

Adm no. - 2009-18
Rules affected - 7.211, 7.313, 8.119
Date entered - November 13, 2009
Comments open to - March 1, 2010

At both the Court of Appeals and Supreme Court levels, a new provision that materials that are the subject of a pending motion to seal the record shall be held under seal until the court makes its ruling on the motion.

Newly adopted items

Disqualification of Supreme Court justices
Use of electronic equipment in courtrooms

Confidentiality - mediation

Court rule affected - MCR 2.412 (new rule)
Admin no. - n/a
Issued - 10-28-09
Comments open to - 2-1-10

See later item regarding adoption

This one comes directly from the SCAO's Mediation Confidentiality and Standards of Conduct Committee, rather than from the Supreme Court. The new proposed rule would continue the general rule that "mediation communications" are not admissible in evidence or subject to discovery, but would add a series of exceptions, including disclosures

• necessary to resolve disputes regarding the mediator's fee
  
• necessary to resolve issues regarding a party's failure to appear
  
• making threats of committing a crime, or concealing a crime
  
• "indicating the likelihood" of abuse of a child, an elderly person, or a protected person
  
• relating to claims of professional negligence on the part of a participant
• relating to proceedings to enforce a settlement agreement (qualified immunity)

Link to the proposal (PDF)

New jury instruction on juror behavior

MCivJI 2.06 has been revised to instruct jurors that they may not -

1. discuss the case with others, or among themselves
   
2. read or watch news reports about the case
   
3. use a computer or other electronic device while in the courtroom or in the jury room
4. use a computer or other electronic device at any time to obtain information about the case
5. visit the scene of the occurrence
   
6. do any investigations or experiments on their own.
   

Interestingly, the instruction does not mention posting by jurors of information about the trial on a web site or social interaction site.

Effective 9-1-09. This amendment corresponds to the amendment of MCR 2.511.

Two other instructions, 2.07 and 2.12, were deleted, since their provisions are now incorporated in this one.

Newly adopted

Amendments that were initially listed here as proposed, and later adopted.

Notices of intent and affidavits in medmal cases - placing time limits on challenges to the sufficiency of these filings

Attire and appearance of parties and witnesses

Use of electronic equipment by jurors

Disqualification of Supreme Court justices

Use of electronic equipment by jurors

Court rule affected - MCR 2.511
Admin no. - 2008-33
Issued - June 30, 2009
Effective - September 1, 2009

The Court has announced an amendment to Rule 2.511, "Impanelling the Jury", which adds requirements as a new subsection (H)(2) for instructions to jurors about their use of electronic equipment:

(2) The court shall instruct the jurors that until their jury service is concluded, they shall not
(a) discuss the case with others, including other jurors, except as otherwise authorized by the court;
(b) read or listen to any news reports about the case;
(c) use a computer, cellular phone, or other electronic device with communication capabilities while in attendance at trial or during deliberation. These devices may be used during breaks or recesses but may not be used to obtain or disclose information prohibited in subsection (d) below;
(d) use a computer, cellular phone, or other electronic device with communication capabilities, or any other method, to obtain or disclose information about the case when they are not in court. As used in this subsection, information about the case includes, but is not limited to, the following:
(i) information about a party, witness, attorney, or court officer;
(ii) news accounts of the case;
(iii) information collected through juror research on any topics raised or testimony offered by any witness;
(iv) information collected through juror research on any other topic the juror might think would be helpful in deciding the case.

Although no one would reasonably disagree with the content of these instructions, it is quizzical that this was adopted as an amendment to the court rule, when there is a separately-constituted committee charged with considering amendments to the Model Civil Jury Instructions.

The Court's staff comment notes that some of these rules do not apply to courts participating in the jury reform pilot project, where jurors are permitted to discuss the case while the proofs are under way. The comment appears to relate to subrule 2(a) only.

Link

Garnishments after judgment

Court rule affected - MCR 3.101
Admin no. - 2008-41
Issued - 5-19-09
Effective - 9-1-09

Makes two amendments to the cited rule.

Adds a new (H)(1)(c), which states:

A bank or other financial institution, as garnishee, shall not withhold exempt funds of the debtor from an account into which only exempt funds are directly deposited and where such funds are clearly identifiable upon deposit as exempt Social Security benefits, Supplemental Security Income benefits, Railroad Retirement benefits, Black Lung benefits, or Veterans Assistance benefits.

The second adds subrule (I)(6):

A bank or other financial institution, as garnishee, shall not withhold exempt funds of the debtor from an account into which only exempt funds are directly deposited and where such funds are clearly identifiable upon deposit as exempt Social Security benefits, Supplemental Security Income benefits, Railroad Retirement benefits, Black Lung benefits, or Veterans Assistance benefits.

This directs banks, etc., not to withhold (turn over to the judgment creditor) funds if:

• the funds are exempt
  
• they are directly deposited, and
  
• they are clearly identifiable upon deposit as exempt funds of the categories listed.

The amendment requires that the account include only exempt funds, and requires that they be "clearly identifiable" as such.