The discovery process in litigation can take a significant amount of time. Attorneys must get all the information necessary to help their client in a civil case. This information can include medical records, interrogatories, requests for production, and many more files and documents. However, in the modern day, these documents and information can be exchanged very quickly via email, and online filing with the courts. While this information can be exchanged very quickly, the court system itself can be painfully slow. From pre-trial conferences to trial plans, and trial dates set out nearly a year, there can be long periods of time where nothing happens in a case besides communication between the parties. This is where Trial Rule 41(E) comes in.

Trial Rule 41(E) states that where there is inaction in a case for 60 days or more, either the court or a party to the case may request that it be dismissed with prejudice, meaning that the side that has been inactive would have to pay court fees and attorney’s fees for the other side. This can cause for problems for the other side, because even if they have a case, if they have been inactive for 60 days just waiting, their case can be dismissed.

There is an argument made for Trial Rule 41(E) to be repealed, because it could cause a plaintiff who had been prepared for trial to have to go into court every 60 days just to respond to a frivolous 41(E) motion. This can be frustrating for plaintiffs who have to respond to these motions, and it can be frustrating for the courts who have to deal with these motions.

Discovery practices have changed since this trial rule was adopted. Discovery happens on a shorter timeline now, and because trial dates are often set far out in advance, plaintiffs are often prepared in a shorter time as well. This can mean weeks or months of inactivity in a case where both sides have all the information they need to proceed to trial.

Another problem is that there are gaps in activity in many civil cases. After medical records have been received, and after maybe one round of mediation has occurred, there might be a long period of time greater than 60 days where nothing happens. There might be little communication, and there might be no significant moves to get more dates set for mediation, especially if the parties were far apart on their requested numbers to settle a case.

Should Trial Rule 41(E) be changed or repealed? This is a question that must be answered fully by the legislature in Indiana, but it must be pushed for by attorneys and judges who most often have to deal with these motions and by the new reality we live in today. Today, discovery moves significantly faster than it used to. Communication happens faster, medical records are received faster, and the answering of requests for production and interrogatories can often be done in one or two days with a couple phone calls or emails. Because of these developments, trials could move forward quicker, and we would not have to worry about Trial Rule 41(E).

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