• CMottHesse

KEY PROPOSED RULE CHANGES & THEIR IMPACT: Discovery Based on a Tiered System, by Taylor Fouser

Please welcome Taylor Fouser, an Attorney at Gjording Fouser as a Guest Blogger!

Recently, the Idaho Supreme Court Civil Justice Reform Task Force, which is made up of a cross-section of judges and attorneys, recommended the Supreme Court adopt significant changes to the current Idaho Rules of Civil Procedure. As stated in the Task Force’s Final Report, “The suggested changes to the civil rules are intended to provide more timely and cost-effective justice in approximately 70 percent of the general cases filed in Idaho courts,” which includes medical malpractice. While the proposed rules have yet to be adopted by the Supreme Court, leaving in flux whether and when the rules will come into effect, it is believed the Task Force has the full support of the Idaho Supreme Court. This blogpost, which is based on our analysis of the Task Force’s Final Report and a rules presentation from the Hon. Steven Hippler, summarizes how specific proposed rule changes will impact medical malpractice defense so we are prepared if/when the proposed rules become live.

The New Tiers of Discovery

State courts will now be asked to designate a case tier based on an analysis of numerous factors, such as a stipulation, the amount in controversy, discovery needs, expert needs, etc. The three tiers are creatively named: Tier 1 – Simple; Tier 2 – Regular; Tier 3 – Complex. While the parties are free to stipulate, the judge, in the hopes of involving the court more in the case process, as the final say in tier designation. The tier of a case will influence the trial scheduling and amount of discovery permitted in a given case. The discovery limitations by tier type are:

The Task Force is also proposing to eliminate the long-standing discovery standard of “appears reasonably calculated to lead to the discovery of admissible evidence” in favor of the “proportionality standard” utilized by the federal courts. Finally, every case will have mandatory initial disclosures where each party as an affirmative duty to disclose and supplement:

  1. Persons with knowledge

  2. Documents supporting claim or defense

  3. A computation of damages

  4. Liability insurance agreements

  5. Documents referenced in pleadings

Impact on Medical Malpractice Cases

We anticipate most of the medical malpractice cases will fall into the Tier 3 (complex) category. In recent years, the amount of discovery received and the time it takes to respond to a plaintiff’s discovery request has become overly burdensome and often pointless. It has become common practice for plaintiffs’ counsel to engage in fishing expeditions, through their discovery on the hospital, by requesting discovery such as all policies, joint commission documents, brochures, training modules, and even the zip codes of patients seen at the facilities.

In a recent medical malpractice case involving a fall, our hospital was forced to respond to 148 Requests for Admission and 57 Requests for Production. The current rules place a cap on the number of Interrogatories at 40, but there is no such limitation on the number of Requests for Production or Admission, which has been abused by plaintiffs’ counsel.

Overall, If the proposed rules take effect, opposing counsel will have to take greater care in their determination of what to ask for and will give the hospital a stronger leg to stand on in objecting to overly burdensome requests.


The proposed rules are still in their infancy stage, and public comment on the rules closed on June 30, 2019. To this end, we can expect some changes and tweaks to the Task Force’s current recommendations. There can be no doubt, however, that there has been a significant push from people in high places to overhaul the current rules. Idaho can expect changes coming down the pike, and medical malpractice defense firms need to be ready.

9 views0 comments