Recent proposed state/federal changes as of February 2018

Effective February 14, Maine Rule of Civil Procedure 30(b) has been amended to clarify that any party may record a deposition by any means, provided the recording does not disrupt or impede the deposition process. A party may record the deposition by videotape, after giving written notice to every other party. The rule does not specify how much notice should be given, for instance a day or a week.

As the Advisory Note points out, the party noticing the deposition continues to control the official record. The recording method specified in the deposition notice is the only official record of the deposition; the rule intends that additional recordings by other parties are used solely for trial preparation.

Until March 23, attorneys may comment on proposed changes to the hearsay rules. The changes would align the Maine Rules of Evidence more faithfully with the federal rules. First, Evidence Rule 801(d)(1), defining statements that are not hearsay, would be modified to make a witness’s prior consistent statement admissible even absent allegations of recent fabrication or improper influence or motive. The prior consistent statement could be used to rehabilitate the witness’s credibility when attacked on any ground. Additionally, the fact-finder could consider the prior consistent statement not only on the issue of credibility, but also to prove the truth of the matter being testified about.

Second, the business records exception to hearsay in Evidence Rule 803(6) would be modified. Currently, the proponent of such evidence bears the burden to affirmatively prove the information’s source and method of preparation are trustworthy (or at least, not untrustworthy). Under the proposed rule, the burden shifts to the opponent to prove the method or circumstances of preparation indicate a lack of trustworthiness, in order to keep the evidence out after the proponent has met her burden to establish all other foundational elements.

Third, adoption of a residual exception to hearsay is proposed. A jury may hear and consider hearsay evidence that does not fall into any category of exception or exclusion, if the statement “has equivalent circumstantial guarantees of trustworthiness.” The advisory committee notes make it clear that although the rule was adopted to provide more flexibility to courts, the rule drafters anticipate use of the residual exception to admit evidence “will be a rarity.”

To submit comments on the proposed changes, go to:

Action on the proposed amendment to Maine Rule of Professional Conduct 8.4 has been deferred until the Advisory Committee has fully considered the proposal. This proposed rule would make it professional misconduct for a lawyer to engage in “unlawful” harassment or discrimination. Numerous comments have been submitted, with some commenters opining the rule did not reach far enough because it limited misconduct to “unlawful” harassment or discrimination. Comments can be viewed at: