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HAWAI#I RULESOF CIVIL PROCEDURE

Adopted and Promulgated bythe Supreme Court

of the State of Hawai#i

As amended April 7, 1980Effective April 7, 1980

With Amendments as Noted

The Judiciary State of Hawai#i

(Release: 06/06) i

HAWAI#I RULES OF CIVIL PROCEDURE

Table of Contents

I. SCOPE OF RULES -- ONE FORM OF ACTION

Rule 1. SCOPE OF RULES

Rule 2. ONE FORM OF ACTION

II. COMMENCEMENT OF ACTION: SERVICE OF PROCESS,PLEADINGS, MOTIONS AND ORDERS

Rule 3. COMMENCEMENT OF ACTION

Rule 4. PROCESS(a) Summons: Issuance(b) Same: Form(c) Same: By whom served(d) Same: Personal service(e) Same: Other service(f) Territorial limits of effective service(g) Return(h) Amendment

Rule 5. SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS(a) Service: When required(b) Same: How made(c) Same: Numerous defendants(d) Filing(e) Filing with the court defined(f) Nonfiling of discovery materials

Rule 6. TIMES(a) Computation(b) Enlargement(c) Deleted(d) For motions; affidavits(e) Additional time after service by mail

Table of Contents Hawai#i Rules of Civil Procedure

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III. PLEADINGS AND MOTIONS

Rule 7. PLEADINGS ALLOWED; FORM OF MOTIONS(a) Pleadings(b) Motions and other papers(c) Demurrers, pleas, etc., abolished

Rule 8. GENERAL RULES OF PLEADING(a) Claims for relief(b) Defenses; form of denials(c) Affirmative defenses(d) Effect of failure to deny(e) Pleading to be concise and direct; consistency(f) Construction of pleadings

Rule 9. PLEADING SPECIAL MATTERS(a) Capacity(b) Fraud, mistake, condition of the mind(c) Conditions precedent(d) Official document or act(e) Judgment(f) Time and place(g) Special damage

Rule 10. FORM OF PLEADINGS(a) Caption; names of parties(b) Paragraphs; separate statements(c) Adoption by reference; exhibits

Rule 11. SIGNING OF PLEADINGS, MOTIONS, AND OTHER PAPERS;REPRESENTATIONS TO THE COURT; SANCTIONS(a) Signature(b) Representations to court(c) Sanctions

(1) How initiated(A) By Motion(B) On Court's Initiative

(2) Nature of sanction; limitations(3) Order

(d) Inapplicability to discovery

Hawai#i Rules of Civil Procedure Table of Contents

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Rule 12. DEFENSES AND OBJECTIONS -- WHEN AND HOW PRESENTED-- BY PLEADING OR MOTION -- MOTION FOR JUDGMENT ONTHE PLEADINGS(a) When presented(b) How presented(c) Motion for judgment on the pleadings(d) Preliminary hearings(e) Motion for more definite statement(f) Motion to strike(g) Consolidation of defenses in motion(h) Waiver or preservation of certain defenses

Rule 13. COUNTERCLAIM AND CROSS-CLAIM(a) Compulsory counterclaims(b) Permissive counterclaims(c) Counterclaim exceeding opposing claim(d) Counterclaim against the state(e) Counterclaim maturing or acquired after pleading(f) Omitted counterclaim(g) Cross-claim against co-party(h) Joinder of additional parties(i) Separate trials; separate judgment

Rule 14. THIRD-PARTY PRACTICE(a) When defendant may bring in third- party(b) When plaintiff may bring in third party

Rule 15. AMENDED AND SUPPLEMENTAL PLEADINGS(a) Amendments(b) Amendments to conform to the evidence(c) Relation back of amendments(d) Supplemental pleadings

Rule 16. PRE-TRIAL CONFERENCES; SCHEDULING; MANAGEMENT(a) Pretrial conferences; objectives(b) Scheduling and planning(c) Subjects for consideration at pretrial conferences(d) Final pretrial conference(e) Pretrial orders(f) Sanctions


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IV. PARTIES

Rule 17. PARTIES PLAINTIFF AND DEFENDANT; CAPACITY(a) Real party in interest(b) Reserved(c) Infants or incompetent persons(d) Unidentified defendant

Rule 18. JOINDER OF CLAIMS AND REMEDIES(a) Joinder of claims(b) Joinder of remedies; fraudulent conveyances

Rule 19. JOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION(a) Persons to be joined if feasible(b) Determination by court whenever joinder not feasible(c) Pleading reasons for nonjoinder(d) Exception of class actions

Rule 20. PERMISSIVE JOINDER OF PARTIES(a) Permissive joinder(b) Separate trials

Rule 21. MISJOINDER AND NONJOINDER OF PARTIES

Rule 22. INTERPLEADER

Rule 23. CLASS ACTIONS(a) Prerequisites to a class action(b) Class actions maintainable(c) Determination by order whether class action to be

maintained; notice; judgment; actions conducted partiallyas class actions

(d) Orders in conduct of actions(e) Dismissal or compromise

Rule 23.1. DERIVATIVE ACTIONS BY SHAREHOLDERS

Rule 23.2. ACTIONS RELATING TO UNINCORPORATEDASSOCIATIONS

Rule 24. INTERVENTION(a) Intervention of right(b) Permissive intervention(c) Procedure(d) Notice of Claim of Unconstitutionality


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Rule 25. SUBSTITUTION OF PARTIES(a) Death(b) Incompetency(c) Transfer of interest(d) Public officers; death or separation from office

V. DEPOSITIONS AND DISCOVERY

Rule 26. GENERAL PROVISIONS GOVERNING DISCOVERY(a) Discovery Methods(b) Discovery Scope and Limits

(1) In general(2) Limitations(3) Insurance Agreements(4) Trial Preparation: Materials(5) Trial Preparation: Experts(6) Claims of Privilege or Protection of Trial

Preparation Materials(c) Protective Orders(d) Sequence and Timing of Discovery(e) Supplementation of Responses(f) Discovery Conference(g) Signing of Discovery Requests, Responses, and Objections

Rule 27. DEPOSITIONS BEFORE ACTION OR PENDING APPEAL(a) Before Action

(1) Petition(2) Notice and Service(3) Order and Examination(4) Use of Deposition

(b) Pending Appeal(c) Perpetuation by Action

Rule 28. PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN(a) Within the United States(b) In Foreign Countries(c) Disqualification for Interest

Rule 29. STIPULATIONS REGARDING DISCOVERY PROCEDURE


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Rule 30. DEPOSITIONS UPON ORAL EXAMINATION(a) When Depositions May Be Taken; When Leave Required(b) Notice of Examination: General Requirements; Method

of Recording; Production of Documents and Things; Deposition of Organization; Deposition by Telephone

(c) Examination and Cross-Examination; Record ofExamination; Oath; Objections

(d) Schedule and Duration; Motion to Terminate or Limit Examination(e) Review by Witness; Changes; Signing(f) Certification and Delivery by Officer; Exhibits; Copies(g) Failure to Attend or to Serve Subpoena; Expenses

Rule 31. DEPOSITIONS UPON WRITTEN QUESTIONS(a) Serving Questions; Notice(b) Officer to Take Responses and Prepare Record(c) Notice of Filing

Rule 32. USE OF DEPOSITIONS IN COURT PROCEEDINGS(a) Use of Depositions(b) Pretrial Disclosures(c) Objections to Admissibility(d) Form of Presentation(e) Effect of Errors and Irregularities in Depositions

(1) As to Notice(2) As to Disqualification of Officer(3) As to Taking of Deposition(4) As to Completion and Return of Deposition

Rule 33. INTERROGATORIES TO PARTIES(a) Availability(b) Answers and Objections(c) Scope; Use at Trial(d) Option to Produce Business Records

Rule 34. PRODUCTION OF DOCUMENTS AND THINGS AND ENTRYUPON LAND FOR INSPECTION AND OTHER PURPOSES(a) Scope(b) Procedure(c) Persons Not Parties

Rule 35. PHYSICAL AND MENTAL EXAMINATION OF PERSONS(a) Order for Examination(b) Report of Examiner


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Rule 36. REQUESTS FOR ADMISSION(a) Request for Admission(b) Effect of Admission

Rule 37. FAILURE TO MAKE OR COOPERATE IN DISCOVERY; SANCTIONS(a) Motion for Order Compelling Discovery

(1) Appropriate Court(2) Motion(3) Evasive or Incomplete Answer or Response(4) Expenses and Sanctions

(b) Failure to Comply With Order(1) Sanctions by Court in Circuit Where Deposition Is Taken(2) Sanctions by Court in Which Action Is Pending

(c) Failure to Disclose; False or Misleading Disclosure;Refusal to Admit

(d) Failure of Party to Attend at Own Deposition or ServeAnswers to Interrogatories or Respond to Request forInspection

(e) Expenses Against the State

VI. TRIALS

Rule 38. JURY TRIAL OF RIGHT(a) Right preserved(b) Demand(c) Same: Specification of issues(d) Waiver

Rule 39. TRIAL BY JURY OR BY THE COURT(a) By jury(b) By the court.(c) Advisory jury and trial by consent.

Rule 40. ASSIGNMENT OF CASES FOR TRIAL

Rule 41. DISMISSAL OF ACTIONS(a) Voluntary dismissal: Effect thereof

(1) By plaintiff; by stipulation(2) By order of court

(b) Involuntary dismissal: Effect thereof(c) Dismissal of counterclaim, cross-claim, or third-party claim(d) Costs of previously-dismissed action


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Rule 42. CONSOLIDATION; SEPARATE TRIALS(a) Consolidation(b) Separate trials

Rule 43. TAKING OF TESTIMONY(a) Form(b) Presentation of expert testimony(c) Record of excluded evidence(d) Affirmation in lieu of oath(e) Evidence on motions(f) Interpreters

Rule 44. PROOF OF OFFICIAL RECORD(a) Authentication

(1) Domestic(2) Foreign

(b) Lack of record(c) Other proof

Rule 44.1. DETERMINATION OF FOREIGN LAW

Rule 45. SUBPOENA(a) For attendance of witnesses; form; issuance(b) For production of documentary evidence(c) Service(d) Subpoena for taking depositions; place of examination(e) Duties in responding to subpoena(f) Contempt

Rule 46. EXCEPTIONS UNNECESSARY

Rule 47. JURORS(a) Conduct of jury selection(b) Alternate jurors(c) Questioning by jury(d) Note taking by jurors(e) Excuse

Rule 48. JURIES OF LESS THAN TWELVE -- MAJORITY VERDICT

Rule 49. SPECIAL VERDICTS AND INTERROGATORIES(a) Special verdicts(b) General verdict accompanied by answer to interrogatories


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Rule 50. JUDGMENT AS A MATTER OF LAW IN JURY TRIALS;ALTERNATIVE MOTION FOR NEW TRIAL; CONDITIONALRULINGS(a) Judgment as a matter of law(b) Renewing motion for judgment after trial; alternative

motion for new trial(c) Granting renewed motion for judgment as a matter of

law; conditional rulings; new trial motion(d) Same: Denial of motion for judgment as a matter of law

Rule 51. INSTRUCTIONS TO JURY(a) Pre-instruction(b) Requests(c) Settlement(d) Court's instructions(e) Oral comment(f) Instructions and objections

Rule 52. FINDINGS BY THE COURT(a) Effect(b) Amendment(c) Judgment on partial findings

Rule 53. MASTERS(a) Appointment and compensation(b) Reference(c) Powers

VII. JUDGMENT

Rule 54. JUDGMENTS; COSTS; ATTORNEYS' FEES(a) Definition; form(b) Judgment upon multiple claims or involving multiple parties(c) Demand for judgment(d) Costs; attorneys' fees

(1) Costs other than attorneys' fees(2) Attorneys' fees


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Rule 55. DEFAULT(a) Entry(b) Judgment

(1) By the clerk(2) By the court

(c) Setting aside default(d) Plaintiffs, counterclaimants, cross- claimants(e) Judgment against the state, etc.

Rule 56. SUMMARY JUDGMENT(a) For claimant(b) For defending party(c) Motion and proceedings thereon(d) Case not fully adjudicated on motion(e) Form of affidavits; further testimony; defense required(f) When affidavits are unavailable(g) Affidavits made in bad faith(h) Form of order

Rule 57. DECLARATORY JUDGMENTS

Rule 58. ENTRY OF JUDGMENT

Rule 59. NEW TRIALS; AMENDMENT OF JUDGMENTS(a) Grounds(b) Time for motion(c) Time for serving affidavits(d) On court's initiative; notice; specifying grounds(e) Motion to alter or amend judgment

Rule 60. RELIEF FROM JUDGMENT OR ORDER(a) Clerical mistakes(b) Mistakes; inadvertence; excusable neglect; newly

discovered evidence; fraud, etc.

Rule 61. HARMLESS ERROR


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Rule 62. STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT(a) Automatic stay; exceptions - Injunctions, receiverships,

and accountings(b) Stay on motion for new trial or for judgment(c) Injunction pending appeal(d) Stay upon appeal(e) Stay in favor of the state, etc.(f) Reserved(g) Power of supreme court and intermediate court of appeals not limited(h) Stay of judgment as to multiple claims or multiple parties

Rule 63. INABILITY OF A JUDGE TO PROCEED

VIII. PROVISIONAL AND FINAL REMEDIESAND SPECIAL PROCEEDINGS

Rule 64. SEIZURE OF PERSON OR PROPERTY

Rule 65. INJUNCTIONS(a) Preliminary injunction

(1) Notice(2) Consolidation of hearing with trial on merits

(b) Temporary restraining order; notice; hearing; duration(c) Security(d) Form and scope of injunction or restraining order(e) Civil defense and emergency act cases

Rule 65.1. SECURITY: PROCEEDINGS AGAINST SURETIES

Rule 66. RECEIVERS APPOINTED BY COURTS

Rule 67. DEPOSIT IN COURT

Rule 68. OFFER OF SETTLEMENT OR JUDGMENT

Rule 69. EXECUTION

Rule 70. JUDGMENT FOR SPECIFIC ACTS; VESTING TITLE

Rule 71. PROCESS IN BEHALF OF AND AGAINST PERSONS NOTPARTIES


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IX. APPEAL

Rule 72. APPEAL TO A CIRCUIT COURT(a) How taken(b) Time(c) Service(d) Record on appeal

(1) Designation(2) Counter designation

(e) Statement of case(f) Reserved(g) Trial by jury(h) Costs(i) Stay(j) Reserved(k) Judgment

Rule 73. to 76. DELETED

X. CIRCUIT COURTS AND CLERKS

Rule 77. CIRCUIT COURTS AND CLERKS(a) Circuit courts always open(b) Trials and hearings; orders in chambers(c) Clerk's office and orders by clerk(d) Notice of orders or judgments(e) Reserved

Rule 78. MOTION DAY

Rule 79. BOOKS AND RECORDS KEPT BY THE CLERK AND ENTRIESTHEREIN(a) Civil docket(b) Civil judgments and orders(c) Indices; calendars(d) Other books and records of the clerk

Rule 80. STENOGRAPHIC REPORT OR TRANSCRIPT AS EVIDENCE(a) Reserved(b) Reserved(c) Stenographic report or transcript as evidence


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XI. GENERAL PROVISIONS

Rule 81. APPLICABILITY(a) To what proceedings not applicable(b) Other proceedings(c) Jury trial in probate proceedings(d) Jury trial in land court proceedings(e) Other appeals to circuit court(f) Appeals(g) Depositions and discovery(h) Order of court(i) Applicability in general(j) References to incompetent person

Rule 81.1. MANDAMUS

Rule 82. JURISDICTION AND VENUE UNAFFECTED

Rule 83. RULES BY CIRCUIT COURTS

Rule 84. FORMS

Rule 85. TITLE

Rule 86. RESERVED


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APPENDIX OF FORMS

Form 1. Summons

Form 2. Reserved

Form 3. Complaint on a Promissory Note

Form 4. Complaint on an Account

Form 5. Complaint for Goods Sold and Delivered

Form 6. Complaint for Money Lent

Form 7. Complaint for Money Paid by Mistake

Form 8. Complaint for Money Had and Received

Form 9. Complaint for Negligence

Form 10. Complaint for Negligence Where Plaintiff Is Unableto Determine Definitely Whether the PersonResponsible Is C. D. or E. F. or Whether Both AreResponsible and Where His Evidence May Justify aFinding of Wilfulness or of Recklessness or ofNegligence

Form 11. Complaint for Conversion

Form 12. Complaint for Specific Performance of Contract to ConveyLand

Form 13. Complaint on Claim for Debt and to Set AsideFraudulent Conveyance Under Rule 18(b)

Form 14. Reserved

Form 15. Reserved

Form 16. Reserved

Form 17. Reserved


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Form 18. Complaint for Interpleader and Declaratory Relief.

Form 19. Motion to Dismiss, Presenting Defenses ofFailure to State a Claim or Lack of Service ofProcess

Form 20. Answer Presenting Defenses Under Rule 12(b)

Form 21. Answer to Complaint Set Forth in Form 8,With Counterclaim for Interpleader

Form 22. Replaced

Form 22-A. Summons and Complaint Against Third-Party Defendant

Form 22-B. Motion to Bring in Third-Party Defendant

Form 23. Motion to Intervene as a Defendant Under Rule 24

Form 24. Request for Production of Documents, etc.,Under Rule 34

Form 25. Request for Admissions Under Rule 36

Form 26. Allegation of Reason for Omitting Party

Form 27. Deleted

Form 28. Reserved

Form 29. Notice of Appeal From Decision or Order ofGovernmental Official or Body to the CircuitCourt Under Rule 72(a)

Form 30. Suggestion of Death Upon the Record UnderRule 25(a)(1)


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HAWAI#I RULES OF CIVIL PROCEDURE Rule 4

(Release: 06/04) HRCP--1

I. SCOPE OF RULES --ONE FORM OF ACTION

Rule 1. SCOPE OF RULES.These rules govern the procedure in the circuit

courts of the State in all suits of a civil nature whe-ther cognizable as cases at law or in equity, with theexceptions stated in Rule 81. They shall be construedand administered to secure the just, speedy, andinexpensive determination of every action.

(Amended December 7, 1999, effective January1, 2000.)

Rule 2. ONE FORM OF ACTION.There shall be one form of action to be known as

"civil action".

II. COMMENCEMENT OF ACTION: SERVICE OF PROCESS, PLEADINGS,

MOTIONS AND ORDERS

Rule 3. COMMENCEMENT OF ACTION.A civil action is commenced by filing a

complaint with the court.

Rule 4. PROCESS.(a) Summons: Issuance. Upon the filing of the

complaint the clerk shall forthwith issue a summons.Plaintiff shall deliver the complaint and summonsfor service to a person authorized to serve process.Upon request of the plaintiff separate or additionalsummons shall issue against any defendants.

(b) Same: Form. The summons shall(1) be signed by the clerk, under the seal of the

court,(2) contain the name of the court, the names of

the parties, and the date when issued, (3) be directed to the defendant, (4) state the name and address of the plaintiff's

attorney, if any, otherwise the plaintiff's address, (5) state the time within which these rules

require the defendant to appear and defend, and shallnotify the defendant that in case of defendant'sfailure to do so judgment by default will be renderedagainst the defendant for the relief demanded in thecomplaint,

(6) contain a prohibition against personal

delivery of the summons between 10:00 p.m. and6:00 a.m. on premises not open to the public, unlessa judge of the district or circuit courts permits, inwriting on the summons, personal delivery duringthose hours, and

(7) contain a warning to the person summonedthat failure to obey the summons may result in anentry of default and default judgment.

When, under Rule 4(e), service is made pursuantto a statute or rule of court, the summons, or notice,or order in lieu of summons, shall correspond asnearly as may be to that required by the statute orrule.

(c) Same: By whom served. Service of allprocess shall be made: (1) anywhere in the State bythe sheriff or the sheriff's deputy, by some otherperson specially appointed by the court for thatpurpose, or by any person who is not a party and isnot less than 18 years of age; or (2) in any county bythe chief of police or the chief's duly authorizedsubordinate. A subpoena, however, may be served asprovided in Rule 45.

(d) Same: Personal service. The summons andcomplaint shall be served together. The plaintiff shallfurnish the person making service with such copiesas are necessary. Service shall be made as follows:

(1) Upon an individual other than an infant or anincompetent person, (A) by delivering a copy of thesummons and of the complaint to the individualpersonally or in case the individual cannot be foundby leaving copies thereof at the individual's dwellinghouse or usual place of abode with some person ofsuitable age and discretion then residing therein or(B) by delivering a copy of the summons and of thecomplaint to an agent authorized by appointment orby law to receive service of process.

(2) Upon an infant, by delivering a copy of thesummons and of the complaint personally (A) to theguardian of the infant's property or if there is noguardian of the infant's property or service cannot bemade upon such guardian then as provided by orderof the court and (B) if the infant be of the age of 16years or over, also to the infant; and upon anincompetent person, by delivering a copy of thesummons and of the complaint personally (A) to theguardian of the incompetent's property, or if theincompetent is living in an institution then to thedirector or chief executive officer of the institution,or if service cannot be made upon either of them,

Rule 4 HAWAI#I RULES OF CIVIL PROCEDURE

HRCP--2 (Release: 06/04)

then as provided by order of the court, and (B) unlessthe court otherwise orders, also to the incompetentperson.

(3) Upon a domestic or foreign corporation orupon a partnership or other unincorporatedassociation which is subject to suit under a commonname, by delivering a copy of the summons and ofthe complaint to an officer, a managing or generalagent, or to any other agent authorized byappointment or by law to receive service of processand, if the agent is one authorized by statute toreceive service and the statute so requires, by alsomailing a copy to the defendant.

(4) Upon the State by delivering a copy of thesummons and of the complaint to the attorneygeneral of the State or to the assistant attorneygeneral or to any deputy attorney general who hasbeen appointed by the attorney general.

(5) Upon an officer or agency of the State byserving the State and by delivering a copy of thesummons and of the complaint to such officer oragency. If the agency is a corporation, the copiesshall be delivered as provided in paragraph (3) of thissubdivision of this rule.

(6) Upon a county, as provided by statute or thecounty charter, or by delivering a copy of thesummons and of the complaint to the corporationcounsel or county attorney or any of his or herdeputies.

(7) Upon an officer or agency of a county, byserving the county and by delivering a copy of thesummons and of the complaint to such officer oragency. If the agency is a corporation the copies shallbe delivered as provided in paragraph (3) of thissubdivision of this rule.

(8) Upon a defendant of any class referred to inparagraph (1) or (3) of this subdivision of this rule, itis also sufficient if the summons and complaint areserved in the manner prescribed by any statute.

(e) Same: Other service. Whenever a statute oran order of court provides for service upon a partynot an inhabitant of or found within the State, of asummons, or of a notice, or of an order in lieu ofsummons, service shall be made under thecircumstances and in the manner prescribed by thestatute or order. Whenever a statute or an order ofcourt requires or permits service by publication of asummons, or of a notice, or of an order in lieu ofsummons, any publication pursuant thereto shall be

made under the circumstances and in the mannerprescribed by the statute or order.

(f) Territorial limits of effective service. Allprocess may be served anywhere within the Stateand, when a statute or order so provides, beyond thelimits of the State.

(g) Return. The person serving the process shallmake proof of service thereof to the court promptlyand in any event within the time during which theperson served must respond to process. When serviceis made by any person specially appointed by thecourt, that person shall make affidavit of suchservice.

(h) Amendment. At any time in its discretionand upon such terms as it deems just, the court mayallow any process or proof of service thereof to beamended unless it clearly appears that materialprejudice would result to the substantial rights of theparty against whom the process issued.

(Amended May 15, 1972, effective July 1, 1972;further amended September 14, 1993, effectiveSeptember 14, 1993; further amended May 12, 1995,effective June 1, 1995; further amended December 7,1999, effective January 1, 2000; further amendedApril 25, 2003, effective July 1, 2003.)

Rule 5. SERVICE AND FILING OF PLEAD-INGS AND OTHER PAPERS.

(a) Service: When required. Every orderrequired by its terms to be served, every pleadingsubsequent to the original complaint unless the courtotherwise orders because of numerous defendants,every paper relating to discovery required to beserved upon a party unless the court otherwiseorders, every written motion other than one whichmay be heard ex parte, and every written notice,appearance, demand, brief or memorandum of law,offer of judgment, bill of costs, designation of recordon appeal, and similar paper shall be served uponeach of the parties, but no service need be made onparties in default for failure to appear, except thatpleadings asserting new or additional claims forrelief against them shall be served upon them in themanner provided for service of summons in Rule 4.

(b) Same: How made. Whenever under theserules service is required or permitted to be madeupon a party represented by an attorney the serviceshall be made upon the attorney unless service uponthe party is ordered by the court.



(1) Service upon the attorney or upon a partyshall be made (a) by delivering a copy to the attorneyor party; or (b) by mailing it to the attorney or partyat the attorney's or party's last known address; or (c)if no address is known, by leaving it with the clerk ofthe court; or (d) if service is to be upon the attorney,by facsimile transmission to the attorney's businessfacsimile receiver.

(2) Delivery of a copy within this rule means:handing it to the attorney or to the party; or leavingit at the attorney's or party's office with a clerk orother person in charge thereof; or, if there is no onein charge, leaving it in a conspicuous place therein;or, if the office is closed or the person to be servedhas no office, leaving it at the person's dwellinghouse or usual place of abode with some person ofsuitable age and discretion then residing therein.Facsimile transmission means transmission andreceipt of the entire document without error with acover sheet which states the attorney(s) to whom it isdirected, the case name and court case number, andthe title and number of pages of the document.

(3) Service by mail is complete upon mailing.Service by facsimile transmission is complete uponreceipt of the entire document by the intendedrecipient and between the hours of 8:00 a.m. and5:00 p.m. on a court day. Service by facsimiletransmission that occurs after 5:00 p.m. shall bedeemed to have occurred on the next court day.

(4) Service by facsimile transmission shall beconfirmed by a certificate of service which declaresthat service was accomplished by facsimiletransmission to a specific phone number, on aspecific date, at a specific time.

(c) Same: Numerous defendants. In any actionin which there are unusually large numbers ofdefendants, the court, upon motion or of its owninitiative, may order that service of the pleadings ofthe defendants and replies thereto need not be madeas between the defendants and that any cross-claim,counterclaim, or matter constituting an avoidance oraffirmative defense contained therein shall bedeemed to be denied or avoided by all other partiesand that the filing of any such pleading and servicethereof upon the plaintiff constitutes due notice of itto the parties. A copy of every such order shall beserved upon the parties in such manner and form asthe court directs.

(d) Filing. Except as provided in subdivision (f)of this rule, all papers after the complaint required tobe served upon a party, together with a certificate ofservice, shall be filed with the court either beforeservice or within a reasonable time after service. Alldocuments filed with the court shall be previously orcontemporaneously served on all parties to theaction, except as permitted in subdivision (a) above.

(e) Filing with the court defined. The filing ofpleadings and other papers with the court as requiredby these rules shall be made by filing them with theclerk of the court, except that the judge may permitthe papers to be filed with him or her, in which eventthe judge shall note thereon the filing date andforthwith transmit them to the office of the clerk.Any other rule to the contrary notwithstanding, theclerk shall not refuse to accept for filing any paperpresented for that purpose solely because it is notpresented in proper form as required by these rules.Proposed findings, conclusions, orders, or judgmentssubmitted for signature shall be dated and stamped"lodged" or "received" by the clerk and transmittedto the court for consideration.

(f) Nonfiling of discovery materials. Adeposition, interrogatory, request for discoveryproduction or inspection, request for documents,request for admissions, and answers and responsesthereto shall not be filed automatically with thecourt; provided that on a motion or at trial any suchdocument shall be filed when offered in evidence orsubmitted as an exhibit; and further provided that adeposition taken outside this state or a depositiontaken by an officer who is discontinuing theoccupation of taking depositions shall be promptlyfiled pursuant to Rule 30(f)(1). In addition the courtmay at any time, on ex parte request or sua sponte,order the filing of any discovery material.

(Amended May 15, 1972, effective July 1, 1972;further amended March 16, 1984, partly effectiveMarch 16, 1984; fully effective May 1, 1984; furtheramended June 23, 1997 and July 2, 1997, effectiveAugust 1, 1997; further amended December 7, 1999,effective January 1, 2000.)



Rule 6. TIMES.(a) Computation. In computing any period of

time prescribed or allowed by these rules, by order ofcourt, or by any applicable statute, the day of the act,event, or default after which the designated period oftime begins to run shall not be included. The last dayof the period so computed shall be included unless itis a Saturday, a Sunday or a holiday, in which eventthe period runs until the end of the next day which isnot a Saturday, a Sunday or a holiday. When theperiod of time prescribed or allowed is less than 7days, intermediate Saturdays, Sundays and holidaysshall be excluded in the computation. As used in thisrule, "holiday" includes any day designated as suchpursuant to section 8-1 of the Hawai#i RevisedStatutes.

(b) Enlargement. When by these rules or by anotice given thereunder or by order of court an act isrequired or allowed to be done at or within aspecified time, the court for cause shown may at anytime in its discretion (1) with or without motion ornotice order the period enlarged if request therefor ismade before the expiration of the period originallyprescribed or as extended by a previous order or (2)upon motion made after the expiration of thespecified period permit the act to be done where thefailure to act was the result of excusable neglect; butit may not extend the time for taking any actionunder Rules 50(b) 52(b), 59(b), (d) and (e) and 60(b)of these rules and Rule 4(a) of the Hawai#i Rules ofAppellate Procedure, except to the extent and underthe conditions stated in them.

(c) Deleted. (d) For motions; affidavits. A written motion,

other than one that may be heard ex parte, and noticeof the hearing thereof, shall be served not less than18 days before the date fixed for the hearing, unlessa different period is fixed by these rules or by orderof the court. Such an order may for cause shown bemade on ex parte application. When a motion issupported by affidavit, the affidavit shall be servedwith the motion; and, except as otherwise providedin Rule 59(c), opposing affidavits may be served notless than 8 days before the date set for the hearing,unless the court permits them to be served at someother time.

(e) Additional time after service by mail.Whenever a party has the right or is required to dosome act or take some proceedings within a

prescribed period after the service of a notice orother paper upon him and the notice or paper isserved upon him by mail, 2 days shall be added to theprescribed period.

(Amended May 15, 1972, effective July 1, 1972,further amended June 29, 1973, effective July 2,1973, further amended June 22, 1983, effective July1, 1983, further amended April 23, 1985, effectiveApril 23, 1985; further amended July 26, 1990,effective September 1, 1990; further amendedSeptember 11, 1996, effective January 1, 1997;further amended May 15, 1997, effective June 2,1997; further amended December 7, 1999, effectiveJanuary 1, 2000.)

III. PLEADINGS AND MOTIONS

Rule 7. PLEADINGS ALLOWED; FORMOF MOTIONS.

(a) Pleadings. There shall be a complaint and ananswer; a reply to a counterclaim denominated assuch; an answer to a cross-claim, if the answercontains a cross-claim; a third-party complaint, if aperson who was not an original party is summonedunder the provisions of Rule 14; and a third-partyanswer, if a third-party complaint is served. No otherpleading shall be allowed, except that the court mayorder a reply to an answer or a third-party answer.

(b) Motions and other papers. (1) An application to the court for an order shall

be by motion which, unless made during a hearing ortrial, shall be made in writing, shall state withparticularity the grounds therefor, and shall set forththe relief or order sought. The requirement of writingis fulfilled if the motion is stated in a written noticeof the hearing of the motion.

(2) The rules applicable to captions, signing, andother matters of form of pleadings apply to allmotions and other papers provided for by these rules.

(3) All motions shall be signed in accordancewith Rule 11.

(c) Demurrers, pleas, etc., abolished.Demurrers, pleas, and exceptions for insufficiency ofa pleading shall not be used.

(Amended May 15, 1972, effective July 1, 1972;further amended December 7, 1999, effectiveJanuary 1, 2000.)



Rule 8. GENERAL RULES OF PLEADING.(a) Claims for relief. A pleading which sets

forth a claim for relief, whether an original claim,counterclaim, cross-claim, or third-party claim, shallcontain (1) a short and plain statement of the claimshowing that the pleader is entitled to relief, and (2)a demand for judgment for the relief the pleaderseeks. Relief in the alternative or of several differenttypes may be demanded.

(b) Defenses; form of denials. A party shallstate in short and plain terms defenses to each claimasserted and shall admit or deny the averments uponwhich the adverse party relies. If a party is withoutknowledge or information sufficient to form a beliefas to the truth of an averment, the party shall so stateand this has the effect of a denial. Denials shall fairlymeet the substance of the averments denied. When apleader intends in good faith to deny only a part or aqualification of an averment, the pleader shallspecify so much of it as is true and material and shalldeny only the remainder. Unless the pleader intendsin good faith to controvert all the averments of thepreceding pleading, the pleader may make denials asspecific denials of designated averments orparagraphs, or may generally deny all the avermentsexcept such designated averments or paragraphs asthe pleader expressly admits; but, when the pleaderdoes so intend to controvert all its averments, thepleader may do so by general denial subject to theobligations set forth in Rule 11.

(c) Affirmative defenses. In pleading to apreceding pleading, a party shall set forthaffirmatively accord and satisfaction, arbitration andaward, assumption of risk, contributory negligence,discharge in bankruptcy, duress, estoppel, failure ofconsideration, fraud, illegality, injury by fellowservant, laches, license, payment, release, resjudicata, statute of frauds, statute of limitations,waiver, and any other matter constituting anavoidance or affirmative defense. When a party hasmistakenly designated a defense as a counterclaim ora counterclaim as a defense, the court on terms, ifjustice so requires, shall treat the pleading as if therehad been a proper designation.

(d) Effect of failure to deny. Averments in apleading to which a responsive pleading is required,other than those as to the amount of damage, areadmitted when not denied in the responsive pleading.Averments in a pleading to which no responsive

pleading is required or permitted shall be taken asdenied or avoided.

(e) Pleading to be concise and direct;consistency.

(1) Each averment of a pleading shall be simple,concise, and direct. No technical forms of pleadingor motions are required.

(2) A party may set forth two or more statementsof a claim or defense alternatively or hypothetically,either in one count or defense or in separate countsor defenses. When two or more statements are madein the alternative and one of them if madeindependently would be sufficient, the pleading isnot made insufficient by the insufficiency of one ormore of the alternative statements. A party may alsostate as many separate claims or defenses as the partyhas regardless of consistency and whether based onlegal or on equitable grounds or on both. Allstatements shall be made subject to the obligationsset forth in Rule 11.

(f) Construction of pleadings. All pleadingsshall be so construed as to do substantial justice.




Rule 9. PLEADING SPECIAL MATTERS.(a) Capacity. It is not necessary to aver the

capacity of a party to sue or be sued or the authorityof a party to sue or be sued in a representativecapacity or the legal existence of an organizedassociation of persons that is made a party. When aparty desires to raise an issue as to the legalexistence of any party or the capacity of any party tosue or be sued or the authority of a party to sue or besued in a representative capacity, the party shall doso by specific negative averment, which shall includesuch supporting particulars as are peculiarly withinthe pleader's knowledge.

(b) Fraud, mistake, condition of the mind. Inall averments of fraud or mistake, the circumstancesconstituting fraud or mistake shall be stated withparticularity. Malice, intent, knowledge, and othercondition of mind of a person may be averredgenerally.

(c) Conditions precedent. In pleading theperformance or occurrence of conditions precedent,it is sufficient to aver generally that all conditionsprecedent have been performed or have occurred. Adenial of performance or occurrence shall be madespecifically and with particularity.

(d) Official document or act. In pleading anofficial document or official act it is sufficient toaver that the document was issued or the act done incompliance with law.

(e) Judgment. In pleading a judgment ordecision of a domestic or foreign court, judicial orquasi judicial tribunal, or of a board or officer, it issufficient to aver the judgment or decision withoutsetting forth matter showing jurisdiction to render it.

(f) Time and place. For the purpose of testingthe sufficiency of a pleading, averments of time andplace are material and shall be considered like allother averments of material matter.

(g) Special damage. When items of specialdamage are claimed, they shall be specifically stated.


Rule 10. FORM OF PLEADINGS.(a) Caption; names of parties. Every pleading

shall contain a caption setting forth the name of thecourt, the title of the action, the file number, and adesignation as in Rule 7(a). In the complaint the titleof the action shall include the names of all the

parties, but in other pleadings it is sufficient to statethe name of the first party on each side with anappropriate indication of other parties.

(b) Paragraphs; separate statements. Allaverments of claim or defense shall be made innumbered paragraphs, the contents of each of whichshall be limited as far as practicable to a statement ofa single set of circumstances; and a paragraph maybe referred to by number in all succeeding pleadings.Each claim founded upon a separate transaction oroccurrence and each defense other than denials shallbe stated in a separate count or defense whenever aseparation facilitates the clear presentation of thematters set forth.

(c) Adoption by reference; exhibits.Statements in a pleading may be adopted byreference in a different part of the same pleading orin another pleading or in any motion. A copy of anywritten instrument which is an exhibit to a pleadingis a part thereof for all purposes.

Rule 11. S I G N I N G O F P LEADINGS,MOTIONS, AND OTHER PAPERS;REPRESENTATIONS TO THECOURT; SANCTIONS.

(a) Signature. Every pleading, written motion,and other paper shall be signed by at least oneattorney of record in the attorney's individual name,or, if the party is not represented by an attorney, shallbe signed by the party. Each paper shall state thesigner's address and telephone number, if any. Exceptwhen otherwise specifically provided by rule orstatute, pleadings need not be verified oraccompanied by affidavit. An unsigned paper shallbe stricken by the clerk unless omission of thesignature is corrected promptly after being called tothe attention of the attorney or party.

(b) Representations to court. By presenting tothe court (whether by signing, filing, submitting, orlater advocating) a pleading, written motion, or otherpaper, an attorney or unrepresented party iscertifying that to the best of the person's knowledge,information, and belief, formed after an inquiryreasonable under the circumstances:

(1) it is not being presented for any improperpurpose, such as to harass or to cause unnecessarydelay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legalcontentions therein are warranted by existing law or



by a nonfrivolous argument for the extension,modification, or reversal of existing law or theestablishment of new law;

(3) the allegations and other factual contentionshave evidentiary support or, if specifically soidentified, are likely to have evidentiary support aftera reasonable opportunity for further investigation ordiscovery; and

(4) the denials of factual contentions arewarranted on the evidence or, if specifically soidentified, are reasonably based on a lack ofinformation or belief.

(c) Sanctions. If, after notice and a reasonableopportunity to respond, the court determines thatsubdivision (b) has been violated, the court may,subject to the conditions stated below, impose anappropriate sanction upon the attorneys, law firms, orparties that have violated subdivision (b) or areresponsible for the violation.

(1) HOW INITIATED. (A) By Motion. A motion for sanctions under this

rule shall be made separately from other motions orrequests and shall describe the specific conductalleged to violate subdivision (b). It shall be servedas provided in Rule 5, but shall not be filed with orpresented to the court unless, within 21 days afterservice of the motion (or such other period as thecourt may prescribe), the challenged paper, claim,defense, contention, allegation, or denial is notwithdrawn or appropriately corrected. If warranted,the court may award to the party prevailing on themotion the reasonable expenses and attorney's feesincurred in presenting or opposing the motion.Absent exceptional circumstances, a law firm shallbe held jointly responsible for violations committedby its partners, associates, and employees.

(B) On Court's Initiative. On its own initiative,the court may enter an order describing the specificconduct that appears to violate subdivision (b) anddirecting an attorney, law firm, or party to showcause why it has not violated subdivision (b) withrespect thereto.

(2) NATURE OF SANCTION; LIMITATIONS. Asanction imposed for violation of this rule shall belimited to what is sufficient to deter repetition ofsuch conduct or comparable conduct by otherssimilarly situated. Subject to the limitations insubparagraphs (A) and (B), the sanction may consistof, or include, directives of a nonmonetary nature, an

order to pay a penalty into court, or, if imposed onmotion and warranted for effective deterrence, anorder directing payment to the movant of some or allof the reasonable attorneys' fees and other expensesincurred as a direct result of the violation.

(A) Monetary sanctions may not be awardedagainst a represented party for a violation ofsubdivision (b)(2).

(B) Monetary sanctions may not be awarded onthe court's initiative unless the court issues its orderto show cause before a voluntary dismissal orsettlement of the claims made by or against the partywhich is, or whose attorneys are, to be sanctioned.

(3) ORDER. When imposing sanctions, the courtshall describe the conduct determined to constitute aviolation of this rule and explain the basis for thesanction imposed.

(d) Inapplicability to discovery. Subdivisions(a) through (c) of this rule do not apply to disclosuresand discovery requests, responses, objections, andmotions that are subject to the provisions of Rules 26through 37.

(Amended July 26, 1990, effective September 1,1990; further amended December 7, 1999, effectiveJanuary 1, 2000.)

Rule 12. DEFENSES AND OBJECTIONS --WHEN AND HOW PRESENTED --BY PLEADING OR MOTION --MOTION FOR JUDGMENT ONTHE PLEADINGS.

(a) When presented. (1) A defendant shall serve an answer within 20

days after being served with the summons andcomplaint, except when service is made under Rule4(c) and a different time is prescribed in an order ofcourt under a statute or rule of court.

(2) A party served with a pleading stating across-claim against that party shall serve an answerthereto within 20 days after being served. Theplaintiff shall serve a reply to a counter-claim in theanswer within 20 days after service of the answer or,if a reply is ordered by the court, within 20 days afterservice of the order, unless the order otherwisedirects.

(3) The service of a motion permitted under thisrule alters these periods of time as follows, unless adifferent time is fixed by order of the court:



(A) if the court denies the motion or postponesits disposition until the trial on the merits, theresponsive pleading shall be served within 10 daysafter notice of the court's action;

(B) if the court grants a motion for a moredefinite statement the responsive pleading shall beserved within 10 days after the service of the moredefinite statement.

(b) How presented. Every defense, in law orfact, to a claim for relief in any pleading, whether aclaim, counterclaim, cross-claim, or third-partyclaim, shall be asserted in the responsive pleadingthereto if one is required, except that the followingdefenses may at the option of the pleader be made bymotion: (1) lack of jurisdiction over the subjectmatter, (2) lack of jurisdiction over the person,(3) improper venue, (4) insufficiency of process,(5) insufficiency of service of process, (6) failure tostate a claim upon which relief can be granted,(7) failure to join a party under Rule 19. A motionmaking any of these defenses shall be made beforepleading if a further pleading is permitted. Nodefense or objection is waived by being joined withone or more other defenses or objections in aresponsive pleading or motion. If a pleading setsforth a claim for relief to which the adverse party isnot required to serve a responsive pleading, theadverse party may assert at the trial any defense inlaw or fact to that claim for relief. If, on a motionasserting the defense numbered (6) to dismiss forfailure of the pleading to state a claim upon whichrelief can be granted, matters outside the pleading arepresented to and not excluded by the court, themotion shall be treated as one for summary judgmentand disposed of as provided in Rule 56, and allparties shall be given reasonable opportunity topresent all material made pertinent to such a motionby Rule 56.

(c) Motion for judgment on the pleadings.After the pleadings are closed but within such timeas not to delay the trial, any party may move forjudgment on the pleadings. If, on a motion forjudgment on the pleadings, matters outside thepleadings are presented to and not excluded by thecourt, the motion shall be treated as one for summaryjudgment and disposed of as provided in Rule 56,and all parties shall be given reasonable opportunityto present all material made pertinent to such amotion by Rule 56.

(d) Preliminary hearings. The defensesspecifically enumerated (1)-(7) in subdivision (b) ofthis rule, whether made in a pleading or by motion,and the motion for judgment mentioned insubdivision (c) of this rule shall be heard anddetermined before trial on application of any party,unless the court orders that the hearing anddetermination thereof be deferred until the trial.

(e) Motion for more definite statement. If apleading to which a responsive pleading is permittedis so vague or ambiguous that a party cannotreasonably be required to frame a responsivepleading, the party may move for a more definitestatement before interposing a responsive pleading.The motion shall point out the defects complained ofand the details desired. If the motion is granted andthe order of the court is not obeyed within 10 daysafter notice of the order or within such other time asthe court may fix, the court may strike the pleadingto which the motion was directed or make such orderas it deems just.

(f) Motion to strike. Upon motion made by aparty before responding to a pleading or, if noresponsive pleading is permitted by these rules, uponmotion made by a party within 20 days after theservice of the pleading upon the party or upon thecourt's own initiative at any time, the court may orderstricken from any pleading any insufficient defenseor any redundant, immaterial, impertinent, orscandalous matter.

(g) Consolidation of defenses in motion. Aparty who makes a motion under this rule may joinwith it any other motions herein provided for andthen available to the party. If a party makes a motionunder this rule but omits therefrom any defense orobjection then available to the party which this rulepermits to be raised by motion, the party shall notthereafter make a motion based on the defense orobjection so omitted, except a motion as provided insubdivision (h)(2) hereof on any of the grounds therestated.

(h) Waiver or preservation of certaindefenses.

(1) A defense of lack of jurisdiction over theperson, improper venue, insufficiency of process, orinsufficiency of service of process is waived (A) ifomitted from a motion in the circumstancesdescribed in subdivision (g) or (B) if it is neithermade by motion under this rule nor included in a



responsive pleading or an amendment thereofpermitted by Rule 15(a) to be made as a matter ofcourse.

(2) A defense of failure to state a claim uponwhich relief can be granted, a defense of failure tojoin a party indispensable under Rule 19, and anobjection of failure to state a legal defense to a claimmay be made in any pleading permitted or orderedunder Rule 7(a), or by motion for judgment on thepleadings, or at the trial on the merits.

(3) Whenever it appears by suggestion of theparties or otherwise that the court lacks jurisdictionof the subject matter, the court shall dismiss theaction.


Rule 13. COUNTERCLAIM AND CROSS-CLAIM.

(a) Compulsory counterclaims. A pleadingshall state as a counterclaim any claim which at thetime of serving the pleading the pleader has againstany opposing party, if it arises out of the transactionor occurrence that is the subject matter of theopposing party's claim and does not require for itsadjudication the presence of third parties of whomthe court cannot acquire jurisdiction. But the pleaderneed not state the claim if (1) at the time the actionwas commenced the claim was the subject of anotherpending action or (2) the opposing party brought suitupon the claim by attachment or other process bywhich the court did not acquire jurisdiction to rendera personal judgment on that claim, and the pleader isnot stating any counterclaim under this Rule 13.

(b) Permissive counterclaims. A pleading maystate as a counterclaim any claim against an opposingparty not arising out of the transaction or occurrencethat is the subject matter of the opposing party'sclaim.

(c) Counterclaim exceeding opposing claim.A counterclaim may or may not diminish or defeatthe recovery sought by the opposing party. It mayclaim relief exceeding in amount or different in kindfrom that sought in the pleading of the opposingparty.

(d) Counterclaim against the state. These rulesshall not be construed to enlarge beyond the limitsnow fixed by law the right to assert counterclaims or

to claim credits against the State or a county, or anofficer or agency of the State or a county.

(e) Counterclaim maturing or acquired afterpleading. A claim which either matured or wasacquired by the pleader after serving a pleading may,with the permission of the court, be presented as acounterclaim by supplemental pleading.

(f) Omitted counterclaim. When a pleader failsto set up a counterclaim through oversight,inadvertence, or excusable neglect, or when justicerequires, the pleader may by leave of court set up thecounterclaim by amendment.

(g) Cross-claim against co-party. A pleadingmay state as a cross-claim any claim by one partyagainst a co-party arising out of the transaction oroccurrence that is the subject matter either of theoriginal action or of a counterclaim therein orrelating to any property that is the subject matter ofthe original action. Such cross-claim may include aclaim that the party against whom it is asserted is ormay be liable to the cross-claimant for all or part ofa claim asserted in the action against thecross-claimant.

(h) Joinder of additional parties. Persons otherthan those made parties to the original action may bemade parties to a counterclaim or cross-claim inaccordance with the provisions of Rules 19 and 20.

(i) Separate trials; separate judgment. If thecourt orders separate trials as provided in Rule 42(b),judgment on a counterclaim or cross-claim may berendered in accordance with the terms of Rule 54(b)when the court has jurisdiction so to do, even if theclaims of the opposing party have been dismissed orotherwise disposed of.




Rule 14. THIRD-PARTY PRACTICE.(a) When defendant may bring in third-

party. At any time after commencement of the actiona defending party, as a third-party plaintiff, maycause a summons and complaint to be served upon aperson not a party to the action who is or may beliable to the plaintiff or the third-party plaintiff forall or part of the plaintiff's claim against thethird-party plaintiff. The third-party plaintiff neednot obtain leave to make the service if the third-partyplaintiff files the third-party complaint not later than10 days after serving the original answer. Otherwisethe third-party plaintiff must obtain leave on motionupon notice to all parties to the action. The personserved with the summons and third-party complaint,hereinafter called the third-party defendant, shallmake any defenses to the third-party plaintiff's claimas provided in Rule 12 and any counterclaims againstthe third-party plaintiff and cross-claims againstother third-party defendants as provided in Rule 13.The third-party defendant may assert against theplaintiff any defenses which the third-party plaintiffhas to the plaintiff's claim. The third-party defendantmay also assert any claim against the plaintiff arisingout of the transaction or occurrence that is thesubject matter of the plaintiff's claim against thethird-party plaintiff. The plaintiff may assert anyclaim against the third-party defendant arising out ofthe transaction or occurrence that is the subjectmatter of the plaintiff's claim against the third-partyplaintiff, and the third-party defendant thereuponshall assert any defenses as provided in Rule 12 andany counterclaims and cross-claims as provided inRule 13. Any party may move to strike thethird-party claim, or for its severance or separatetrial. A third-party defendant may proceed under thisrule against any person not a party to the action whois or may be liable to the third-party defendant for allor part of the claim made in the action against thethird-party defendant.

(b) When plaintiff may bring in third party.When a counterclaim is asserted against a plaintiff,the plaintiff may cause a third party to be brought inunder circumstances which under this rule wouldentitle a defendant to do so.


Rule 15. AMENDED AND SUPPLEMENTALPLEADINGS.

(a) Amendments. A party may amend theparty's pleading once as a matter of course at anytime before a responsive pleading is served or, if thepleading is one to which no responsive pleading ispermitted and the action has not been placed uponthe trial calendar, the party may so amend it at anytime within 20 days after it is served. Otherwise aparty may amend the party's pleading only by leaveof court or by written consent of the adverse party;and leave shall be freely given when justice sorequires. A party shall plead in response to anamended pleading within the time remaining forresponse to the original pleading or within 10 daysafter service of the amended pleading, whicheverperiod may be the longer, unless the court otherwiseorders.

(b) Amendments to conform to the evidence.When issues not raised by the pleadings are tried byexpress or implied consent of the parties, they shallbe treated in all respects as if they had been raised inthe pleadings. Such amendment of the pleadings asmay be necessary to cause them to conform to theevidence and to raise these issues may be made uponmotion of any party at any time, even after judgment;but failure so to amend does not affect the result ofthe trial of these issues. If evidence is objected to atthe trial on the ground that it is not within the issuesmade by pleadings, the court may allow the pleadingsto be amended and shall do so freely when thepresentation of the merits of the action will besubserved thereby and the objecting party fails tosatisfy the court that the admission of such evidencewould prejudice the party in maintaining the party'saction or defense upon the merits. The court maygrant a continuance to enable the objecting party tomeet such evidence.

(c) Relation back of amendments. Anamendment of a pleading relates back to the date ofthe original pleading when

(1) relation back is permitted by the law thatprovides the statute of limitations applicable to theaction, or

(2) the claim or defense asserted in the amendedpleading arose out of the conduct, transaction, oroccurrence set forth or attempted to be set forth inthe original pleading, or

(3) the amendment changes the party or the



naming of the party against whom a claim is assertedif the foregoing provision (2) is satisfied and theparty to be brought in by amendment (A) hasreceived such notice of the institution of the actionthat the party will not be prejudiced in maintaining adefense on the merits, and (B) knew or should haveknown that, but for a mistake concerning the identityof the proper party, the action would have beenbrought against the party.

(d) Supplemental pleadings. Upon motion of aparty the court may, upon reasonable notice and uponsuch terms as are just, permit the party to serve asupplemental pleading setting forth transactions oroccurrences or events which have happened since thedate of the pleading sought to be supplemented.Permission may be granted even though the originalpleading is defective in its statement of a claim forrelief or defense. If the court deems it advisable thatthe adverse party plead to the supplemental pleading,it shall so order, specifying the time therefor.


Rule 16. PRE-TRIAL CONFERENCES;SCHEDULING; MANAGE-MENT.

(a) Pretrial conferences; objectives. In anyaction, the court may in its discretion direct leadcounsel or other attorneys for the parties and anyunrepresented parties to appear before it for aconference or conferences before trial for suchpurposes as

(1) expediting the disposition of the action;(2) establishing early and continuing control so

that the case will not be protracted because of lack ofmanagement;

(3) discouraging wasteful pretrial activities; (4) improving the quality of the trial through

more thorough preparation; and; (5) facilitating the settlement of the case. (b) Scheduling and planning. The court shall,

after consulting with the attorneys for the parties andany unrepresented parties by a schedulingconference, telephone, mail, or other suitable means,enter a scheduling order that limits the time

(1) to join other parties and to amend thepleadings;

(2) to file motions; and

(3) to complete discovery. The scheduling order may also include (4) modifications of the extent of discovery to be

permitted; (5) the date or dates for conferences before trial,

a final pretrial conference, and trial; and(6) any other matters appropriate in the

circumstances of the case. A schedule shall not be modified except upon a

showing of good cause and by leave of the court.(c) Subjects for consideration at pretrial

conferences. At any conference under this ruleconsideration may be given, and the court may takeappropriate action, with respect to

(1) the formulation and simplification of theissues, including the elimination of frivolous claimsor defenses;

(2) the necessity or desirability of amendmentsto the pleadings;

(3) the possibility of obtaining admissions offact and of documents which will avoid unnecessaryproof, stipulations regarding the authenticity ofdocuments, and advance rulings from the court onthe admissibility of evidence;

(4) the avoidance of unnecessary proof and ofcumulative evidence, and limitations or restrictionson the use of testimony under Rule 702 of theHawai#i Rules of Evidence;

(5) the appropriateness and timing of summaryadjudication under Rule 56;

(6) the control and scheduling of discovery,including orders affecting disclosures and discoverypursuant to Rule 26 and Rules 29 through 37;

(7) the identification of witnesses anddocuments, the need and schedule for filing andexchanging pretrial briefs, and the date or dates forfurther conferences and for trial;

(8) the advisability of referring matters to amaster;

(9) settlement and the use of special proceduresto assist in resolving the dispute when authorized bystatute or rule;

(10) the form and substance of the pretrial order;(11) the disposition of pending motions;(12) the need for adopting special procedures for

managing potentially difficult or protracted actionsthat may involve complex issues, multiple parties,difficult legal questions, or unusual proof problems;



(13) an order for a separate trial pursuant toRule 42(b) with respect to a claim, counterclaim,cross-claim, or third-party claim, or with respect toany particular issue in the case;

(14) an order directing a party or parties topresent evidence early in the trial with respect to amanageable issue that could, on the evidence, be thebasis for a judgment as a matter of law under Rule50(a) or a judgment on partial findings under Rule52(c);

(15) an order establishing a reasonable limit onthe time allowed for presenting evidence; and

(16) such other matters as may facilitate the just,speedy, and inexpensive disposition of the action.

At least one of the attorneys for each partyparticipating in any conference before trial shall haveauthority to enter into stipulations and to makeadmissions regarding all matters that the participantsmay reasonably anticipate may be discussed. Ifappropriate, the court may require that a party or itsrepresentative be present or reasonably available bytelephone in order to consider possible settlement ofthe dispute.

(d) Final pretrial conference. Any final pretrialconference shall be held as close to the time of trialas reasonable under the circumstances. Theparticipants at any such conference shall formulate aplan for trial, including a program for facilitating theadmission of evidence. The conference shall beattended by at least one of the attorneys who willconduct the trial for each of the parties and by anyunrepresented parties.

(e) Pretrial orders. After any conference heldpursuant to this rule, an order shall be enteredreciting the action taken. This order shall control thesubsequent course of the action unless modified by asubsequent order. The order following a final pretrialconference shall be modified only to preventmanifest injustice.

(f) Sanctions. If a party or party's attorney failsto obey a scheduling or pretrial order, or if noappearance is made on behalf of a party at ascheduling or pretrial conference, or if a party orparty's attorney is substantially unprepared toparticipate in the conference, or if a party or party'sattorney fails to participate in good faith, the judge,upon motion or the judge's own initiative, may makesuch orders with regard thereto as are just, andamong others any of the orders provided in Rule

37(b)(2)(B), (C), (D). In lieu of or in addition to anyother sanction, the judge shall require the party or theattorney representing the party or both to pay thereasonable expenses incurred because of anynoncompliance with this rule, including attorney'sfees, unless the judge finds that the noncompliancewas substantially justified or that othercircumstances make an award of expenses unjust.


IV. PARTIES

Rule 17. P A R TIES P L A I N T IF F ANDDEFENDANT; CAPACITY.

(a) Real party in interest. Every action shall beprosecuted in the name of the real party in interest.An executor, administrator, guardian, bailee, trusteeof an express trust, a party with whom or in whosename a contract has been made for the benefit ofanother, or a party authorized by statute may sue inits own name without joining with it the party forwhose benefit the action is brought. No action shallbe dismissed on the ground that it is not prosecutedin the name of the real party in interest until areasonable time has been allowed after objection forratification of commencement of the action by, orjoinder or substitution of, the real party in interest;and such ratification, joinder, or substitution shallhave the same effect as if the action had beencommenced in the name of the real party in interest.

(b) Reserved. (c) Infants or incompetent persons. Whenever

an infant or incompetent person has a guardian, whe-ther appointed as to that person or property, suchguardian appointed as to property, or if no guardianhas been appointed as to property, then such guardianappointed as to that person, may sue or defend onbehalf of the infant or incompetent person. If aninfant or incompetent person does not have a dulyappointed guardian that person may sue by thatperson's next friend or by a guardian ad litem. Thecourt shall appoint a guardian ad litem for an infantor incompetent person not otherwise represented inan action or shall make such other order as it deemsproper for the protection of the infant or incompetentperson.



(d) Unidentified defendant. (1) When it shall be necessary or proper to make

a person a party defendant and the party desiring theinclusion of the person as a party defendant has beenunable to ascertain the identity of a defendant, theparty desiring the inclusion of the person as a partydefendant shall in accordance with the criteria ofRule 11 of these rules set forth in a pleading theperson's interest in the action, so much of the identityas is known (and if unknown, a fictitious name shallbe used), and shall set forth with specificity allactions already undertaken in a diligent andgood-faith effort to ascertain the person's full nameand identity.

(2) Subject to HRS section 657-22, the personintended shall thereupon be considered a partydefendant to the action, as having notice of theinstitution of the action against that person, and assufficiently described for all purposes, includingservices of process, and the action shall proceedagainst that person.

(3) Any party may, by motion for certification,make the name or identity of the party defendantknown to the court within a reasonable time after themoving party knew or should have known the nameor identity of the party defendant. The motion shallbe supported by affidavit setting forth all factssubstantiating the movant's claim that the naming oridentification has been made in good faith and withdue diligence. When the naming or identification ismade by a plaintiff, it shall be made prior to thefiling of the pretrial statement by that plaintiff, orwithin such additional time as the court may allow.The court shall freely grant reasonable extensions ofthe time in which to name or identify the partydefendant to any party exercising due diligence inattempting to ascertain the party defendant's name oridentity.

(4) When a party defendant has been named oridentified in accordance with this rule, the court shallso certify and may make any order that justicerequires to protect any party from undue burden andexpense in any further proceedings involving theparty defendant.

(5) A party defendant who has been named oridentified in accordance with this rule may havedismissal of one or more claims against thedefendant if the defendant shows in a timely mannerthat the delay in naming or identifying that defendant

has caused that defendant substantial prejudice andif the interests of justice so require.

(Amended May 15, 1972, effective July 1, 1972,further amended July 10, 1984, effective July 10,1984; further amended July 26, 1990, effectiveSeptember 1, 1990; further amended December 7,1999, effective January 1, 2000.)

Rule 18. JOINDER OF CLAIMS ANDREMEDIES.

(a) Joinder of claims. A party asserting a claimto relief as an original claim, counterclaim,cross-claim, or third-party claim may join, either asindependent or as alternate claims as many claims,legal or equitable, as the party has against anopposing party.

(b) Joinder of remedies; fraudulentconveyances. Whenever a claim is one heretoforecognizable only after another claim has beenprosecuted to a conclusion, the two claims may bejoined in a single action; but the court shall grantrelief in that action only in accordance with therelative substantive rights of the parties. In particular,a plaintiff may state a claim for money and a claim tohave set aside a conveyance fraudulent as to thatplaintiff, without first having obtained a judgmentestablishing the claim for money.




Rule 19. JOINDER OF PERSONS NEEDEDFOR JUST ADJUDICATION.

(a) Persons to be joined if feasible. A personwho is subject to service of process shall be joined asa party in the action if (1) in the person's absencecomplete relief cannot be accorded among thosealready parties, or (2) the person claims an interestrelating to the subject of the action and is so situatedthat the disposition of the action in the person'sabsence may (A) as a practical matter impair orimpede the person's ability to protect that interest or(B) leave any of the persons already parties subjectto a substantial risk of incurring double, multiple, orotherwise inconsistent obligations by reason of theclaimed interest. If the person has not been so joined,the court shall order that the person be made a party.If the person should join as a plaintiff but refuses todo so, the person may be made a defendant, or, in aproper case, an involuntary plaintiff.

(b) Determination by court whenever joindernot feasible. If a person as described in subdivision(a)(1)-(2) hereof cannot be made a party, the courtshall determine whether in equity and goodconscience the action should proceed among theparties before it, or should be dismissed, the absentperson being thus regarded as indispensable. Thefactors to be considered by the court include: first, towhat extent a judgment rendered in the person'sabsence might be prejudicial to the person or thosealready parties; second, the extent to which, byprotective provisions in the judgment, by the shapingof relief, or other measures, the prejudice can belessened or avoided; third, whether a judgmentrendered in the person's absence will be adequate;fourth, whether the plaintiff will have an adequateremedy if the action is dismissed for nonjoinder.

(c) Pleading reasons for nonjoinder. Apleading asserting a claim for relief shall state thenames, if known to the pleader, of any persons asdescribed in subdivision (a) (1)-(2) hereof who arenot joined, and the reasons why they are not joined.

(d) Exception of class actions. This rule issubject to the provisions of Rule 23.


Rule 20. PERMISSIVE JOINDER OFPARTIES.

(a) Permissive joinder. All persons may join inone action as plaintiffs if they assert any right torelief jointly, severally, or in the alternative inrespect of or arising out of the same transaction,occurrence, or series of transactions or occurrencesand if any question of law or fact common to allthese persons will arise in the action. All personsmay be joined in one action as defendants if there isasserted against them jointly, severally, or in thealternative, any right to relief in respect of or arisingout of the same transaction, occurrence, or series oftransactions or occurrences and if any question oflaw or fact common to all defendants will arise in theaction. A plaintiff or defendant need not be interestedin obtaining or defending against all the reliefdemanded. Judgment may be given for one or moreof the plaintiffs according to their respective rights torelief, and against one or more defendants accordingto their respective liabilities.

(b) Separate trials. The court may make suchorders as will prevent a party from beingembarrassed, delayed, or put to expense by theinclusion of a party against whom the party assertsno claim and who asserts no claim against the party,and may order separate trials or make other orders toprevent delay or prejudice.


Rule 21. MISJOINDER AND NONJOINDEROF PARTIES.

Misjoinder of parties is not ground for dismissalof an action. Parties may be dropped or added byorder of the court on motion of any party or of itsown initiative at any stage of the action and on suchterms as are just. Any claim against a party may besevered and proceeded with separately by order ofthe court.

Rule 22. INTERPLEADER.Persons having claims against the plaintiff may

be joined as defendants and required to interpleadwhen their claims are such that the plaintiff is or maybe exposed to double or multiple liability. It is notground for objection to the joinder that the claims ofthe several claimants or the titles on which theirclaims depend do not have a common origin or arenot identical but are adverse to and independent of



one another, or that the plaintiff avers that theplaintiff is not liable in whole or in part to any or allof the claimants. A defendant exposed to similarliability may obtain such interpleader by way ofcross-claim or counterclaim. The provisions of thisrole supplement and do not in any way limit thejoinder of parties permitted in Rule 20.


Rule 23. CLASS ACTIONS.(a) Prerequisites to a class action. One or more

members of a class may sue or be sued asrepresentative parties on behalf of all only if (1) theclass is so numerous that joinder of all members isimpracticable, (2) there are questions of law or factcommon to the class, (3) the claims or defenses ofthe representative parties are typical of the claims ordefenses of the class, and (4) the representativeparties will fairly and adequately protect the interestsof the class.

(b) Class actions maintainable. An action maybe maintained as a class action if the prerequisites ofsubdivision (a) are satisfied, and in addition:

(1) the prosecution of separate actions by oragainst individual members of the class would createa risk of

(A) inconsistent or varying adjudications withrespect to individual members of the class whichwould establish incompatible standards of conductfor the party opposing the class, or

(B) adjudications with respect to individualmembers of the class which would as a practicalmatter be dispositive of the interests of the othermembers not parties to the adjudications orsubstantially impair or impede their ability to protecttheir interests; or

(2) the party opposing the class has acted orrefused to act on grounds generally applicable to theclass, thereby making appropriate final injunctiverelief or corresponding declaratory relief with respectto the class as a whole; or

(3) the court finds that the questions of law orfact common to the members of the classpredominate over any questions affecting onlyindividual members, and that a class action issuperior to other available methods for the fair andefficient adjudication of the controversy. The matterspertinent to the findings include: (A) the interest of

members of the class in individually controlling theprosecution or defense of separate actions; (B) theextent and nature of any litigation concerning thecontroversy already commenced by or againstmembers of the class; (C) the desirability orundesirability of concentrating the litigation of theclaims in the particular forum; (D) the difficultieslikely to be encountered in the management of a classaction.

(c) Determination by order whether classaction to be maintained; notice; judgment; actionsconducted partially as class actions.

(1) As soon as practicable after thecommencement of an action brought as a classaction, the court shall determine by order whether itis to be so maintained. An order under thissubdivision may be conditional, and may be alteredor amended before the decision on the merits.

(2) In any class action maintained undersubdivision (b)(3), the court shall direct to themembers of the class the best notice practicableunder the circumstances, including individual noticeto all members who can be identified throughreasonable effort. The notice shall advise eachmember that (A) the court will exclude the memberfrom the class if the member so requests by aspecified date; (B) the judgment, whether favorableor not, will include all members who do not requestexclusion; and (C) any member who does not requestexclusion may, if the member desires, enter anappearance through counsel.

(3) The judgment in an action maintained as aclass action under subdivision (b)(1) or (b)(2),whether or not favorable to the class, shall includeand describe those whom the court finds to bemembers of the class. The judgment in an actionmaintained as a class action under subdivision (b)(3),whether or not favorable to the class, shall includeand specify or describe those to whom the noticeprovided in subdivision (c)(2) was directed, and whohave not requested exclusion, and whom the courtfinds to be members of the class.

(4) When appropriate (A) an action may bebrought or maintained as a class action with respectto particular issues, or (B) a class may be dividedinto subclasses and each subclass treated as a class,and the provisions of this rule shall then be construedand applied accordingly.



(d) Orders in conduct of actions. In theconduct of actions to which this rule applies, thecourt may make appropriate orders: (1) determiningthe course of proceedings or prescribing measures toprevent undue repetition or complication in thepresentation of evidence or argument; (2) requiring,for the protection of the members of the class orotherwise for the fair conduct of the action, thatnotice be given in such manner as the court maydirect to some or all of the members of any step inthe action, or of the proposed extent of the judgment,or of the opportunity of members to signify whetherthey consider the representation fair and adequate, tointervene and present claims or defenses, orotherwise to come into the action; (3) imposingconditions on the representative parties or onintervenors; (4) requiring that the pleadings beamended to eliminate therefrom allegations as torepresentation of absent persons, and that the actionproceed accordingly; (5) dealing with similarprocedural matters. The orders may be combinedwith an order under Rule 16, and may be altered oramended as may be desirable from time to time.

(e) Dismissal or compromise. A class actionshall not be dismissed or compromised without theapproval of the court, and notice of the proposeddismissal or compromise shall be given to allmembers of the class in such manner as the courtdirects.


Rule 23.1. DERIVATIVE ACTIONS BYSHAREHOLDERS.

In a derivative action brought by one or moreshareholders or members to enforce a right of acorporation or of an unincorporated association, thecorporation or association having failed to enforce aright which may properly be asserted by it, thecomplaint shall be verified and shall allege that theplaintiff was a shareholder or member at the time ofthe transaction of which the plaintiff complains orthat the plaintiff's share or membership thereafterdevolved on the plaintiff by operation of law. Thecomplaint shall also allege with particularity theefforts made by the plaintiff to obtain the action theplaintiff desires from the directors or comparableauthority and from the shareholders or members, and

the reasons for the plaintiff's failure to obtain theaction or for not making the effort. The derivativeaction may not be maintained if it appears that theplaintiff does not fairly and adequately represent theinterests of the shareholders or members similarlysituated in enforcing the right of the corporation orassociation. The action shall not be dismissed orcompromised without the approval of the court, andnotice of the proposed dismissal or compromise shallbe given to shareholders or members in such manneras the court directs.

(Added May 15, 1972, effective July 1, 1972;amended December 7, 1999, effective January 1,2000.)

Rule 23.2. ACTIONS RELATING TOU N I N C O R P O R A T E DASSOCIATIONS.

An action brought by or against the members ofan unincorporated association as a class by namingcertain members as representative parties may bemaintained only if it appears that the representativeparties will fairly and adequately protect the interestsof the association and its members. In the conduct ofthe action the court may make appropriate orderscorresponding with those described in Rule 23(d),and the procedure for dismissal or compromise of theaction shall correspond with that provided in Rule23(e). This rule shall not preclude an action broughtby or against an unincorporated association pursuantto statute.

(Added May 15, 1972, effective July 1, 1972.)



Rule 24. INTERVENTION.(a) Intervention of right. Upon timely

application anyone shall be permitted to intervene inan action: (1) when a statute confers anunconditional right to intervene; or (2) when theapplicant claims an interest relating to the property ortransaction which is the subject of the action and theapplicant is so situated that the disposition of theaction may as a practical matter impair or impede theapplicant's ability to protect that interest, unless theapplicant's interest is adequately represented byexisting parties.

(b) Permissive intervention. Upon timelyapplication anyone may be permitted to intervene inan action: (1) when a statute confers a conditionalright to intervene; or (2) when an applicant's claim ordefense and the main action have a question of lawor fact in common. When a party to an action reliesfor ground of claim or defense upon any statute,ordinance or executive order administered by anofficer, agency or governmental organization of theState or a county, or upon any regulation, order,requirement or agreement issued or made pursuant tothe statute, ordinance or executive order, the officer,agency or governmental organization upon timelyapplication may be permitted to intervene in theaction. In exercising its discretion the court shallconsider whether the intervention will unduly delayor prejudice the adjudication of the rights of theoriginal parties.

(c) Procedure. A person desiring to interveneshall serve a motion to intervene upon the parties asprovided in Rule 5. The motion shall state thegrounds therefor and shall be accompanied by apleading setting forth the claim or defense for whichintervention is sought. The same procedure shall befollowed when a statute gives a right to intervene.

(d) Notice of Claim of Unconstitutionality. Aparty who draws into question the constitutionality ofa Hawai#i statute, in any proceeding to which theState of Hawai#i, or any agency thereof, or anyofficer or employee thereof in an official capacity isnot a party, shall provide immediate written notice ofthe constitutional issue to the Attorney General ofthe State of Hawai#i.

(Amended May 15, 1972, effective July 1, 1972;further amended December 7, 1999, effectiveJanuary 1, 2000; further amended April 17, 2006,effective July 1, 2006.)

Rule 25. SUBSTITUTION OF PARTIES.(a) Death. (1) If a party dies and the claim is not thereby

extinguished, the court may order substitution of theproper parties. The motion for substitution may bemade by any party or by the successors orrepresentatives of the deceased party and, togetherwith the notice of hearing, shall be served on theparties as provided in Rule 5 and upon persons notparties in the manner provided in Rule 4 for theservice of a summons, and may be served in anyjudicial district. Unless the motion for substitution ismade not later than 120 days after the death issuggested upon the record by service of a statementof the fact of the death as provided herein for theservice of the motion, the action shall be dismissedas to the deceased party.

(2) In the event of the death of one or more ofthe plaintiffs or of one or more of the defendants inan action in which the right sought to be enforcedsurvives only to the surviving plaintiffs or onlyagainst the surviving defendants, the action does notabate. The death shall be suggested upon the recordand the action shall proceed in favor of or against thesurviving parties.

(b) Incompetency. If a party becomesincompetent, the court upon motion served asprovided in subdivision (a) of this rule may allow theaction to be continued by or against the party'srepresentative.

(c) Transfer of interest. In case of any transferof interest, the action may be continued by or againstthe original party, unless the court upon motiondirects the person to whom the interest is transferredto be substituted in the action or joined with theoriginal party. Service of the motion shall be made asprovided in subdivision (a) of this rule.

(d) Public officers; death or separation fromoffice.

(1) When a public officer is a party to an actionin an official capacity and during its pendency dies,resigns, or otherwise ceases to hold office, the actiondoes not abate and the officer's successor isautomatically substituted as a party. Proceedingsfollowing the substitution shall be in the name of thesubstituted party, but any misnomer not affecting thesubstantial rights of the parties shall be disregarded.An order of substitution may be entered at any time,but the omission to enter such an order shall not



affect the substitution.(2) When a public officer sues or is sued in an

official capacity, the officer may be described as aparty by official title rather than by name; but thecourt may require the officer's name to be added.

(Amended May 15, 1972, effective July 1, 1972;further amended July 26, 1990, effective September1, 1990; further amended December 7, 1999,effective January 1, 2000.)

V. DEPOSITIONS AND DISCOVERY

Rule 26. G E N E R A L P R O V I S I O N SGOVERNING DISCOVERY.

(a) Discovery Methods. Parties may obtaindiscovery by one or more of the following methods:depositions upon oral examination or writtenquestions; written interrogatories; production ofdocuments or things or permission to enter upon landor other property, for inspection and other purposes;physical and mental examinations; and requests foradmission.

(b) Discovery Scope and Limits. Unlessotherwise limited by order of the court in accordancewith these rules, the scope of discovery is as follows:

(1) IN GENERAL. Parties may obtain discoveryregarding any matter, not privileged, which isrelevant to the subject matter involved in the pendingaction, whether it relates to the claim or defense ofthe party seeking discovery or to the claim or defenseof any other party, including the existence,description, nature, custody, condition and locationof any books, documents, or other tangible things andthe identity and location of persons havingknowledge of any discoverable matter. It is notground for objection that the information sought willbe inadmissible at the trial if the discovery appearsreasonably calculated to lead to the discovery ofadmissible evidence. All discovery is subject to thelimitations imposed by Rule 26(b)(2)(i), (ii), and(iii).

(2) LIMITATIONS. By order, the court may alterthe limits in these rules on the number of depositionsand interrogatories or the length of depositions underRule 30. By order, the court may also limit thenumber of requests under Rule 36. The frequency orextent of use of the discovery methods otherwisepermitted under these rules shall be limited by the

court if it determines that: (i) the discovery sought isunreasonably cumulative or duplicative, or isobtainable from some other source that is moreconvenient, less burdensome, or less expensive; (ii)the party seeking discovery has had ampleopportunity by discovery in the action to obtain theinformation sought; or (iii) the burden or expense ofthe proposed discovery outweighs its likely benefit,taking into account the needs of the case, the amountin controversy, limitations on the parties' resources,the importance of the issues at stake in the litigation,and the importance of the proposed discovery inresolving the issues. The court may act upon its owninitiative after reasonable notice or pursuant to amotion under Rule 26(c).

(3) INSURANCE AGREEMENTS. A party mayobtain discovery of the existence and contents of anyinsurance agreement under which any personcarrying on an insurance business may be liable tosatisfy part or all of a judgment which may beentered in the action or to indemnify or reimburse forpayments made to satisfy the judgment. Informationconcerning the insurance agreement is not by reasonof disclosure admissible in evidence at trial. Forpurposes of this paragraph, an application forinsurance shall not be treated as part of an insuranceagreement.

(4) TRIAL PREPARATION: MATERIALS. A partymay obtain discovery of documents and tangiblethings otherwise discoverable under subdivision(b)(1) of this rule and prepared in anticipation oflitigation or for trial by or for another party or by orfor that other party's representative (including theother party’s attorney, consultant, surety, indemnitor,insurer, or agent) only upon a showing that the partyseeking discovery has substantial need of thematerials in the preparation of the party’s case andthat the party is unable without undue hardship toobtain the substantial equivalent of the materials byother means. In ordering discovery of such materialswhen the required showing has been made, the courtshall protect against disclosure of the mentalimpressions, conclusions, opinions, or legal theoriesof an attorney or other representative of a partyconcerning the litigation.

A party may obtain without the required showinga statement concerning the action or its subjectmatter previously made by that party. Upon request,a person not a party may obtain without the required



showing a statement concerning the action or itssubject matter previously made by that person. If therequest is refused, the person may move for a courtorder. The provisions of Rule 37(a)(4) apply to theaward of expenses incurred in relation to the motion.For purposes of this paragraph, a statementpreviously made is (A) a written statement signed orotherwise adopted or approved by the person makingit, or (B) a stenographic, mechanical, electrical, orother recording, or a transcription thereof, which isa substantially verbatim recital of an oral statementby the person making it and contemporaneouslyrecorded.

(5) TRIAL PREPARATION: EXPERTS.(A) A party may depose any person who has

been identified as an expert whose opinions may bepresented at trial.

(B) A party may, through interrogatories and/orby deposition, discover facts known or opinions heldby an expert who has been retained or speciallyemployed by another party in anticipation oflitigation or preparation for trial and who is notexpected to be called as a witness at trial, only asprovided in Rule 35(b) or upon a showing ofexceptional circumstances under which it isimpracticable for the party seeking discovery toobtain facts or opinions on the same subject by othermeans.

(C) Unless manifest injustice would result, (i) thecourt shall require that the party seeking discoverypay the expert a reasonable fee for time spent inresponding to discovery under this subdivision; and(ii) with respect to discovery obtained undersubdivision (b)(5)(B) of this rule the court shallrequire the party seeking discovery to pay the otherparty a fair portion of the fees and expensesreasonably incurred by the latter party in obtainingfacts and opinions from the expert.

(6) CLAIMS OF PRIVILEGE OR PROTECTION OF

TRIAL PREPARATION MATERIALS. When a partywithholds information otherwise discoverable underthese rules by claiming that it is privileged or subjectto protection as trial preparation material, the partyshall make the claim expressly and shall describe thenature of the documents, communications, or thingsnot produced or disclosed in a manner that, withoutrevealing information itself privileged or protected,will enable other parties to assess the applicability ofthe privilege or protection.

(c) Protective Orders. Upon motion by a partyor by the person from whom discovery is sought,accompanied by a certification that the movant has ingood faith conferred or attempted to confer withother affected parties in an effort to resolve thedispute without court action, and for good causeshown, the court in which the action is pending oralternatively, on matters relating to a deposition, thecourt in the circuit where the deposition is to betaken may make any order which justice requires toprotect a party or person from annoyance,embarrassment, oppression, or undue burden orexpense, including one or more of the following: (1)that the disclosure or discovery not be had; (2) thatthe disclosure or discovery may be had only onspecified terms and conditions, including adesignation of the time or place; (3) that thediscovery may be had only by a method of discoveryother than that selected by the party seekingdiscovery; (4) that certain matters not be inquiredinto, or that the scope of the disclosure or discoverybe limited to certain matters; (5) that discovery beconducted with no one present except personsdesignated by the court; (6) that a deposition, afterbeing sealed, be opened only by order of the court;(7) that a trade secret or other confidential research,development, or commercial information not berevealed or be revealed only in a designated way; and(8) that the parties simultaneously file specifieddocuments or information enclosed in sealedenvelopes to be opened as directed by the court.

If the motion for a protective order is denied inwhole or in part, the court may, on such terms andconditions as are just, order that any party or personprovide or permit discovery. The provisions of Rule37(a)(4) apply to the award of expenses incurred inrelation to the motion.

(d) Sequence and Timing of Discovery. Unlessthe court upon motion, for the convenience of partiesand witnesses and in the interests of justice, ordersotherwise, methods of discovery may be used in anysequence, and the fact that a party is conductingdiscovery, whether by deposition or otherwise, shallnot operate to delay any other party's discovery.



(e) Supplementation of Responses. A partywho has responded to a request for discovery with aresponse that was complete when made is under noduty to supplement his or her response to includeinformation thereafter acquired, except as follows:

(1) A party is under a duty seasonably tosupplement his response with respect to any questiondirectly addressed to (A) the identity and location ofpersons having knowledge of discoverable matters,and (B) the identity of each person expected to becalled as an expert witness at trial, the subject matteron which he or she is expected to testify, and thesubstance of his or her testimony.

(2) A party is under a duty seasonably to amenda prior response to an interrogatory, request forproduction, or request for admission if the partylearns that (A) the response is in some materialrespect incomplete or incorrect or (B) the responseomits information which if disclosed could lead tothe discovery of additional admissible evidence.

(3) A duty to supplement responses may beimposed by order of the court, agreement of theparties, or at any time prior to trial through newrequests for supplementation of prior responses.

(f) Discovery Conference. At any time after thecommencement of an action the court may direct theattorneys for the parties to appear before it for aconference on the subject of discovery. The courtshall do so upon motion by the attorney for any partyif the motion includes:

(1) A statement of the issues as they then appear;(2) A proposed plan and schedule of discovery;(3) Any limitations proposed to be placed on

discovery;(4) Any other proposed orders with respect to

discovery; and(5) A statement showing that the attorney making

the motion has made a reasonable effort to reachagreement with opposing attorneys on the matters setforth in the motion. Notice of the motion shall beserved on all parties. Objections or additions tomatters set forth in the motion shall be served notlater than 10 days after service of the motion.

Each party and the party's attorney are under aduty to participate in good faith in the framing of adiscovery plan if a plan is proposed by the court orby the attorney for any party.

Following the discovery conference, the courtshall enter an order tentatively identifying the issues

for discovery purposes, establishing a plan andschedule for discovery, setting limitations ondiscovery, if any; and determining such othermatters, including the allocation of expenses and theappointment of a discovery master, as are necessaryfor the proper management of discovery in theaction. An order may be altered or amendedwhenever justice so requires.

Subject to the right of a party who properlymoves for a discovery conference to promptconvening of the conference, the court may combinethe discovery conference with a pretrial conferenceauthorized by Rule 16.

(g) Signing of Discovery Requests, Responses,and Objections.

(1) Every discovery request, response, orobjection made by a party represented by an attorneyshall be signed by at least one attorney of record inthe attorney’s individual name, whose address shallbe stated. An unrepresented party shall sign therequest, response, or objection and state the party’saddress. The signature of the attorney or partyconstitutes a certification that to the best of thesigner’s knowledge, information, and belief, formedafter a reasonable inquiry, the request, response, orobjection is:

(A) consistent with these rules and warranted byexisting law or a good faith argument for theextension, modification, or reversal of existing law;

(B) not interposed for any improper purpose,such as to harass or to cause unnecessary delay orneedless increase in the cost of litigation; and

(C) not unreasonable or unduly burdensome orexpensive, given the needs of the case, the discoveryalready had in the case, the amount in controversy,and the importance of the issues at stake in thelitigation.

If a request, response, or objection is not signed,it shall be stricken unless it is signed promptly afterthe omission is called to the attention of the partymaking the request, response or objection and a partyshall not be obligated to take any action with respectto it until it is signed.

(2) If without substantial justification acertification is made in violation of the rule, thecourt, upon motion or upon its own initiative, shallimpose upon the person who made the certification,the party on whose behalf the request, response, orobjection is made, or both, an appropriate sanction,



which may include an order to pay the amount of thereasonable expenses incurred because of theviolation, including a reasonable attorney's fee.

(Amended May 15, 1972, effective July 1, 1972;further amended July 26, 1990, effective September1, 1990; further amended September 11, 1996,effective January 1, 1997; further amended May 7,2004, effective July 1, 2004.)

Rule 27. DEPOSITIONS BEFORE ACTIONOR PENDING APPEAL.

(a) Before Action.(1) PETITION. A person who desires to

perpetuate testimony regarding any matter that maybe cognizable in any court of this State may file averified petition in the circuit court in the circuit ofthe residence of any expected adverse party. Thepetition shall be entitled in the name of the petitionerand shall show: (A) that the petitioner expects to bea party to an action cognizable in a court of this Statebut is presently unable to bring it or cause it to bebrought, (B) the subject matter of the expected actionand the petitioner’s interest therein, (C) the factswhich the petitioner desires to establish by theproposed testimony and the reasons for desiring toperpetuate it, (D) the names or a description of thepersons the petitioner expects will be adverse partiesand their addresses so far as known, and (E) thenames and addresses of the persons to be examinedand the substance of the testimony which thepetitioner expects to elicit from each, and shall askfor an order authorizing the petitioner to take thedepositions of the persons to be examined named inthe petition, for the purpose of perpetuating theirtestimony.

(2) NOTICE AND SERVICE. The petitioner shallthereafter serve a notice upon each person named inthe petition as an expected adverse party, togetherwith a copy of the petition, stating that the petitionerwill apply to the court, at a time and place namedtherein, for the order described in the petition. Atleast 20 days before the date of hearing the noticeshall be served either within or without the State inthe manner provided in Rule 4(d) for service ofsummons; but if such service cannot with duediligence be made upon any expected adverse partynamed in the petition, the court may make such orderas is just for service by publication or otherwise, andshall appoint, for persons not served in the manner

provided in Rule 4(d), an attorney who shallrepresent them, and, in case they are not otherwiserepresented, shall cross-examine the deponent. If anyexpected adverse party is a minor or incompetent theprovisions of Rule 17(c) apply.

(3) ORDER AND EXAMINATION. If the court issatisfied that the perpetuation of the testimony mayprevent a failure or delay of justice, it shall make anorder designating or describing the persons whosedepositions may be taken and specifying the subjectmatter of the examination and whether thedepositions shall be taken upon oral examination orwritten interrogatories. The depositions may then betaken in accordance with these rules; and the courtmay make orders of the character provided for byRules 34 and 35. For the purpose of applying theserules to depositions for perpetuating testimony, eachreference therein to the court in which the action ispending shall be deemed to refer to the court inwhich the petition for such deposition was filed.

(4) USE OF DEPOSITION. If a deposition toperpetuate testimony is taken under these rules or if,although not so taken, it would be admissible inevidence in the courts of the United States or of thestate, territory or insular possession of the UnitedStates in which it is taken, it may be used in anyaction involving the same subject mattersubsequently brought in the Hawai#i courts inaccordance with the provisions of Rule 32(a).



(b) Pending Appeal. If an appeal has been takenfrom a judgment of a circuit court or before thetaking of an appeal if the time therefor has notexpired, the court in which the judgment wasrendered may allow the taking of the depositions ofwitnesses to perpetuate their testimony for use in theevent of further proceedings in the court. In suchcase the party who desires to perpetuate thetestimony may make a motion in the court for leaveto take the depositions, upon the same notice andservice thereof as if the action was pending in thecourt. The motion shall show (1) the names andaddresses of the persons to be examined and thesubstance of the testimony which the party expects toelicit from each; and (2) the reasons for perpetuatingtheir testimony. If the court finds that theperpetuation of the testimony is proper to avoid afailure or delay of justice, it may make an orderallowing the depositions to be taken and may makeorders of the character provided for by Rules 34 and35, and thereupon the depositions may be taken andused in the same manner and under the sameconditions as are prescribed in these rules fordepositions taken in actions pending in the court.

(c) Perpetuation by Action. This rule does notlimit the power of a court to entertain an action toperpetuate testimony.

(Amended May 7, 2004, effective Julyl 1, 2004.)

Rule 28. PERSONS BEFORE WHOMDEPOSITIONS MAY BETAKEN.

(a) Within the United States. Within theUnited States or within a territory or insularpossession subject to the jurisdiction of the UnitedStates, depositions shall be taken before an officerauthorized to administer oaths by the laws of thisState or of the United States or of the place where theexamination is held, or before a person appointed bythe court in which the action is pending. A person soappointed has power to administer oaths and taketestimony. The term officer as used in Rules 30, 31and 32 includes a person appointed by the court ordesignated by the parties under Rule 29.

(b) In Foreign Countries. Depositions may betaken in a foreign country (1) pursuant to anyapplicable treaty or convention, or (2) pursuant to aletter of request (whether or not captioned a letterrogatory), or (3) on notice before a person

authorized to administer oaths in the place in whichthe examination is held, either by the law thereof orby the law of the United States, or (4) before aperson commissioned by the court, and a person socommissioned shall have the power by virtue of thecommission to administer any necessary oath andtake testimony. A commission or a letter of requestshall be issued on application and notice and onterms that are just and appropriate. It is not requisiteto the issuance of a commission or a letter of requestthat the taking of the deposition in any other manneris impracticable or inconvenient; and both acommission and a letter of request may be issued inproper cases. A notice or commission may designatethe person before whom the deposition is to be takeneither by name or descriptive title. A letter of requestmay be addressed "To the Appropriate Authority in[here name the country]." When a letter of requestor any other device is used pursuant to any applicabletreaty or convention, it shall be captioned in the formprescribed by that treaty or convention. Evidenceobtained in response to a letter of request need not beexcluded merely because it is not a verbatimtranscript, because the testimony was not taken underoath, or because of any similar departure from therequirements for depositions taken within the UnitedStates under these rules.

(c) Disqualification for Interest. No depositionshall be taken before a person who is a relative oremployee or attorney or counsel of any of the parties,or is a relative or employee of such attorney orcounsel, or is financially interested in the action.

(Amended May 7, 2004, effective July 1, 2004.)



Rule 29. STIPULATIONS REGARDINGDISCOVERY PROCEDURE.

Unless otherwise directed by the court, theparties may by written stipulation (1) provide thatdepositions may be taken before any person, at anytime or place, upon any notice, and in any mannerand when so taken may be used like otherdepositions, and (2) modify other proceduresgoverning or limitations placed upon discovery,except that stipulations extending the time providedin Rules 33, 34, and 36 for responses to discoverymay, if they would interfere with any time set forcompletion of discovery, for hearing of a motion, orfor trial, be made only with the approval of the court.

(Amended May 15, 1972, effective July 1, 1972;further amended May 7, 2004, effective July 1,2004.)

Rule 30. DEPOSITIONS UPON ORALEXAMINATION.

(a) When Depositions May Be Taken; WhenLeave Required.

(1) After commencement of the action, any partymay take the testimony of any person, including aparty, by deposition upon oral examination. Leave ofcourt, granted with or without notice, must beobtained only (A) if the plaintiff seeks to take adeposition prior to the expiration of 30 days afterservice of the summons and complaint upon anydefendant or service made under Rule 4(e), exceptthat leave is not required (i) if a defendant has serveda notice of taking deposition or otherwise soughtdiscovery, or (ii) if special notice is given asprovided in subdivision (a)(2)(C) of this rule, or (B)as provided in paragraph (2). The attendance ofwitnesses may be compelled by subpoena asprovided in Rule 45.

(2) A party must obtain leave of court, whichshall be granted to the extent consistent with theprinciples stated in Rule 26(b)(2), if the person to beexamined is confined in prison or if, without thewritten stipulation of the parties:

(A) a proposed deposition would result in morethan ten depositions being taken under this rule orRule 31 by the plaintiffs, or by the defendants, or bythird-party defendants;

(B) the person to be examined already has beendeposed in the case; or

(C) a plaintiff seeks to take a deposition beforethe expiration of the 30 day period specified in Rule30(a)(1)(A) unless the notice contains a certification,with supporting facts, that the person to be examinedis about to leave the State or the United States, or isbound on a voyage to sea, and will be unavailable forexamination unless deposed before that time.

(b) Notice of Examination: GeneralRequirements; Method of Recording; Productionof Documents and Things; Deposition ofOrganization; Deposition by Telephone.

(1) A party desiring to take the deposition of anyperson upon oral examination shall give reasonablenotice in writing to every other party to the action.The notice shall state the time and place for takingthe deposition and the name and address of eachperson to be examined, if known, and, if the name isnot known, a general description sufficient toidentify the person or the particular class or group towhich the person belongs. If a subpoena duces tecumis to be served on the person to be examined, thedesignation of the materials to be produced as setforth in the subpoena shall be attached to, orincluded in, the notice.

(2) The party taking the deposition shall state inthe notice the method by which the testimony shallbe recorded. Unless the court orders otherwise, itmay be recorded by sound, sound-and-visual, orstenographic means, and the party taking thedeposition shall bear the cost of the recording. Anyparty may arrange for a transcription to be madefrom the recording of a deposition taken bynonstenographic means.

(3) With prior notice to the deponent and otherparties, any party may designate another method torecord the deponent's testimony in addition to themethod specified by the person taking the deposition.The additional record or transcript shall be made atthat party's expense unless the court otherwiseorders.

(4) Unless otherwise agreed by the parties, adeposition shall be conducted before an officerappointed or designated under Rule 28 and shallbegin with a statement on the record by the officerthat includes (A) the officer's name and businessaddress; (B) the date, time and place of thedeposition; (C) the name of the deponent; (D) theadministration of the oath or affirmation to thedeponent; and (E) an identification of all persons



present. If the deposition is recorded other thanstenographically, the officer shall repeat items (A)through (C) at the beginning of each unit of recordedtape or other recording medium. The appearance ordemeanor of deponents or attorneys shall not bedistorted through camera or sound-recordingtechniques. At the end of the deposition, the officershall state on the record that the deposition iscomplete and shall set forth any stipulations made bycounsel concerning the custody of the transcript orrecording and the exhibits, or concerning otherpertinent matters.

(5) The notice to a party deponent may beaccompanied by a request made in compliance withRule 34 for the production of documents and tangiblethings at the taking of the deposition. The procedureof Rule 34 shall apply to the request.

(6) A party may in the party’s notice and in asubpoena name as the deponent a public or privatecorporation or a partnership or association orgovernmental agency and describe with reasonableparticularity the matters on which examination isrequested. In that event, the organization so namedshall designate one or more officers, directors, ormanaging agents, or other persons who consent totestify on its behalf , and may set forth, for eachperson designated, the matters on which the personwill testify. A subpoena shall advise a non-partyorganization of its duty to make such a designation.The persons so designated shall testify as to mattersknown or reasonably available to the organization.This subdivision (b)(6) does not preclude taking adeposition by any other procedure authorized in theserules.

(7) The parties may stipulate in writing or thecourt may upon motion order that a deposition betaken by telephone or other remote electronic means.For the purposes of this rule and Rules 28(a),37(a)(1), and 37(b)(1), a deposition taken by suchmeans is taken in the circuit and at the place wherethe deponent is to answer questions.

(c) Examination and Cross-Examination;Record of Examination; Oath; Objections.Examination and cross-examination of witnesses mayproceed as permitted at the trial under the provisionsof the Hawai#i Rules of Evidence except Rules 103and 615. The officer before whom the deposition isto be taken shall put the witness on oath oraffirmation and shall personally, or by someone

acting under the officer’s direction and in theofficer’s presence, record the testimony of thewitness. The testimony shall be takenstenographically or recorded by any other methodauthorized by subdivision (b)(2) of this rule.

All objections made at the time of theexamination to the qualifications of the officer takingthe deposition, to the manner of taking it, to theevidence presented, to the conduct of any party, or toany other aspect of the proceedings shall be noted bythe officer upon the record of the deposition; but theexamination shall proceed, with the testimony beingtaken subject to the objections. In lieu ofparticipating in the oral examination, parties mayserve written questions in a sealed envelope on theparty taking the deposition and the party taking thedeposition shall transmit them to the officer, whoshall propound them to the witness and record theanswers verbatim.

(d) Schedule and Duration; Motion toTerminate or Limit Examination.

(1) Any objection during a deposition must bestated concisely and in a non-argumentative and non-suggestive manner. A person may instruct a deponentnot to answer only when necessary to preserve aprivilege, to enforce a limitation directed by thecourt, or to present a motion under Rule 30(d)(4).

(2) Unless otherwise authorized by the court orstipulated by the parties, a deposition is limited toone day of seven hours. The court must allowadditional time consistently with Rule 26(b)(2) ifneeded for a fair examination of the deponent or ifthe deponent or another person, or othercircumstance, impedes or delays the examination.

(3) If the court finds that any impediment, delay,or other conduct has frustrated the fair examinationof the deponent, it may impose upon the personsresponsible an appropriate sanction, including thereasonable costs and attorney's fees incurred by anyparties as a result thereof.

(4) At any time during a deposition, on motion ofa party or of the deponent and upon a showing thatthe examination is being conducted in bad faith or insuch manner as unreasonably to annoy, embarrass, oroppress the deponent or party, the court in which theaction is pending or the court in the circuit where thedeposition is being taken may order the officerconducting the examination to cease forthwith fromtaking the deposition, or may limit the scope and



manner of the taking of the deposition as provided inRule 26(c). If the order made terminates theexamination, it shall be resumed thereafter only uponthe order of the court in which the action is pending.Upon demand of the objecting party or deponent, thetaking of the deposition must be suspended for thetime necessary to make a motion for an order. Theprovisions of Rule 37(a)(4) apply to the award ofexpenses incurred in relation to the motion.

(e) Review by Witness; Changes; Signing. If requested by the deponent or a party before

completion of the deposition, the deponent shall have30 days after being notified by the officer that thetranscript or recording is available in which to reviewthe transcript or recording and, if there are changesin form or substance, to sign a statement recitingsuch changes and the reasons given by the deponentfor making them. The officer shall indicate in thecertificate prescribed by subdivision (f)(1) whetherany review was requested and, if so, shall append anychanges made by the deponent during the periodallowed.

(f) Certification and Delivery by Officer;Exhibits; Copies.

(1) The officer must certify that the witness wasduly sworn by the officer and that the deposition is atrue record of the testimony given by the witness.This certificate must be in writing and accompanythe record of the deposition. Unless otherwiseordered by the court, the officer must securely sealthe deposition in an envelope indorsed with the titleof the action and marked "Deposition of [here insertname of witness]" and must promptly send it to theattorney who arranged for the transcript or recording,who must store it under conditions that will protectit against loss, destruction, tampering, ordeterioration.

Documents and things produced for inspectionduring the examination of the witness must, upon therequest of a party, be marked for identification andannexed to the deposition and may be inspected andcopied by any party, except that if the personproducing the materials desires to retain them theperson may (A) offer copies to be marked foridentification and annexed to the deposition and toserve thereafter as originals if the person affords toall parties fair opportunity to verify the copies bycomparison with the originals, or (B) offer theoriginals to be marked for identification, after giving

to each party an opportunity to inspect and copythem, in which event the materials may then be usedin the same manner as if annexed to the deposition.Any party may move for an order that the original beannexed to and returned with the deposition to thecourt, pending final disposition of the case.

(2) Unless otherwise ordered by the court oragreed by the parties, the officer shall retainstenographic notes of any deposition takenstenographically or a copy of the recording of anydeposition taken by another method. Upon paymentof reasonable charges therefor, the officer shallfurnish a copy of the transcript or other recording ofthe deposition to any party or to the deponent.

(3) The party taking the deposition shall giveprompt notice of its filing to all other parties.

(g) Failure to Attend or to Serve Subpoena;Expenses.

(1) If the party giving the notice of the taking ofa deposition fails to attend and proceed therewith andanother party attends in person or by attorneypursuant to the notice, the court may order the partygiving the notice to pay to such other party thereasonable expenses incurred by that party and thatparty’s attorney in attending, including reasonableattorney's fees.

(2) If the party giving the notice of the taking ofa deposition of a witness fails to serve a subpoenaupon the witness and the witness because of suchfailure does not attend, and if another party attends inperson or by attorney because that party expects thedeposition of that witness to be taken, the court mayorder the party giving the notice to pay to such otherparty the reasonable expenses incurred by that partyand that party’s attorney in attending, includingreasonable attorney's fees

(Amended May 17, 1972, effective July 1, 1972,further amended March 16, 1984, partly effectiveMarch 16, 1984, fully effective May 1, 1984; furtheramended July 26, 1990, effective September 1, 1990;further amended January 16, 1991, effective January16, 1991; further amended May 7, 2004, effectiveJuly 1, 2004.)



Rule 31. DEPOSITIONS UPON WRITTENQUESTIONS.

(a) Serving Questions; Notice. (1) After commencement of the action, a party

may take the testimony of any person, including aparty, by deposition upon written questions withoutleave of court except as provided in paragraph (2).The attendance of witnesses may be compelled bythe use of subpoena as provided in Rule 45.

(2) A party must obtain leave of court, whichshall be granted to the extent consistent with theprinciples stated in Rule 26(b)(2), if the person to beexamined is confined in prison or if, without thewritten stipulation of the parties:

(A) a proposed deposition would result in morethan ten depositions being taken under this rule orRule 30 by the plaintiffs, or by the defendants, or bythird-party defendants; or

(B) the person to be examined has already beendeposed in the case.

(3) A party desiring to take a deposition uponwritten questions shall serve them upon every otherparty with a notice stat ing (A) the name and addressof the person who is to answer them, if known, andif the name is not known, a general descriptionsufficient to identify the person or the particular classor group to which the person belongs, and (B) thename or descriptive title and address of the officerbefore whom the deposition is to be taken. Adeposition upon written questions may be taken of apublic or private corporation or a partnership orassociation or governmental agency in accordancewith the provisions of Rule 30(b)(6).

(4) Within 14 days after the notice and writtenquestions are served, a party may serve crossquestions upon all other parties. Within 7 days afterbeing served with cross questions, a party may serveredirect questions upon all other parties. Within 7days after being served with redirect questions, aparty may serve recross questions upon all otherparties. The court may for cause shown enlarge orshorten the time.

(b) Officer to Take Responses and PrepareRecord. A copy of the notice and copies of allquestions served shall be delivered by the partytaking the deposition to the officer designated in thenotice, who shall proceed promptly, in the mannerprovided by Rule 30(c), (e), and (f), to take thetestimony of the witness in response to the questionsand to prepare, certify, and file or mail thedeposition, attaching thereto the copy of the noticeand the questions received by the officer.

(c) Notice of Filing. When the deposition isfiled the party taking it shall promptly give noticethereof to all other parties.

(Amended May 17, 1972, effective July 1, 1972,further amended March 16, 1984, partly effectiveMarch 16, 1984, fully effective May 1, 1984; furtheramended July 26, 1990, effective September 1, 1990;further amended January 16, 1991, effective January16, 1991; further amended May 7, 2004, effectiveJuly 1, 2004.)

Rule 32. USE OF DEPOSITIONS IN COURTPROCEEDINGS.

(a) Use of Depositions. At the trial or upon thehearing of a motion or an interlocutory proceeding,any part or all of a deposition, so far as admissibleunder the rules of evidence applied as though thewitness were then present and testifying, may beused against any party who was present orrepresented at the taking of the deposition or whohad reasonable notice thereof, in accordance withany of the following provisions:

(1) Any deposition may be used by any party forthe purpose of contradicting or impeaching thetestimony of deponent as a witness, or for any otherpurpose permitted by the Hawai#i Rules of Evidence.

(2) The deposition of a party or of anyone who atthe time of taking the deposition was an officer,director, or managing agent, or a person designatedunder Rule 30(b)(6) or 31(a) to testify on behalf of apublic or private corporation, partnership orassociation or governmental agency which is a partymay be used by an adverse party for any purpose.

(3) The deposition of a witness, whether or not aparty, may be used by any party for any purpose ifthe court finds: (A) that the witness is dead; or (B)that the witness resides on an island other than thatof the place of trial or hearing, or is out of the State,unless it appears that the absence of the witness was



procured by the party offering the deposition; or (C)that the witness is unable to attend or testify becauseof age, illness, infirmity, or imprisonment; or (D) thatthe party offering the deposition has been unable toprocure the attendance of the witness by subpoena;or (E) upon application and notice, that suchexceptional circumstances exist as to make itdesirable, in the interest of justice and with dueregard to the importance of presenting the testimonyof witnesses orally in open court, to allow thedeposition to be used.

A deposition taken without leave of courtpursuant to a notice under Rule 30(a)(2)(C) shall notbe used against a party who demonstrates that, whenserved with the notice, it was unable through theexercise of diligence to obtain counsel to represent itat the taking of the deposition; nor shall a depositionbe used against a party who, having received lessthan 11 days notice of a deposition, has promptlyupon receiving such notice filed a motion for aprotective order under Rule 26(c)(2) requesting thatthe deposition not be held or be held at a differenttime or place and such motion is pending at the timethe deposition is held.

(4) If only part of a deposition is offered inevidence by a party, an adverse party may require theofferor to introduce any other part which ought infairness to be considered with the part introduced,and any party may introduce any other parts.

Substitution of parties pursuant to Rule 25 doesnot affect the right to use depositions previouslytaken, and, when an action has been brought in anycourt of the United States or of any state and anotheraction involving the same subject matter is afterwardbrought between the same parties or theirrepresentatives or successors in interest, alldepositions lawfully taken and duly filed in theformer action may be used in the latter as iforiginally taken therefor. A deposition previouslytaken may also be used as permitted by the Hawai#iRules of Evidence.

(b) Pretrial Disclosures. A party must provideto other parties and promptly file with the court thefollowing information regarding the evidence that itmay present at trial other than solely forimpeachment: the designation of those witnesseswhose testimony is expected to be presented bymeans of a deposition and, if not takenstenographically, a transcript of the pertinent

portions of the deposition testimony. Unlessotherwise directed by the court, this informationmust be disclosed at least 30 days before trial. Within14 days thereafter, unless a different time is specifiedby the court, a party may serve and promptly file alist disclosing (i) any objections to the use underRule 32(a) of a deposition designated by anotherparty, and (ii) any objection, together with thegrounds therefor, that may be made to theadmissibility of that testimony. Objections not sodisclosed, other than objections under Rules 402 and403 of the Hawai#i Rules of Evidence, are waivedunless excused by the court for good cause. Thesedisclosures must be made in writing, signed, andserved.

(c) Objections to Admissibility. Subject to theprovisions of Rule 28(b) and subdivision (e)(3) ofthis rule, objection may be made at the trial orhearing to receiving in evidence any deposition orpart thereof for any reason which would require theexclusion of the evidence if the witness were thenpresent and testifying.

(d) Form of Presentation. Except as otherwisedirected by the court, a party offering depositiontestimony pursuant to this rule may offer it instenographic or nonstenographic form, but, if innonstenographic form, the party shall also providethe court with a transcript of the portions so offered.On request of any party in a case tried before a jury,deposition testimony offered other than forimpeachment purposes shall be presented innonstenographic form, if available, unless the courtfor good cause orders otherwise.



(e) Effect of Errors and Irregularities inDepositions.

(1) AS TO NOTICE. All errors and irregularities inthe notice for taking a deposition are waived unlesswritten objection is promptly served upon the partygiving the notice.

(2) AS TO DISQUALIFICATION OF OFFICER.Objection to taking a deposition because ofdisqualification of the officer before whom it is to betaken is waived unless made before the taking of thedeposition begins or as soon thereafter as thedisqualification becomes known or could bediscovered with reasonable diligence.

(3) AS TO TAKING OF DEPOSITION.(A) Objections to the competency of a witness or

to the competency, relevancy, or materiality oftestimony are not waived by failure to make thembefore or during the taking of the deposition, unlessthe ground of the objection is one which might havebeen obviated or removed if presented at that time.

(B) Errors and irregularities occurring at the oralexamination in the manner of taking the deposition,in the form of the questions or answers, in the oath oraffirmation, or in the conduct of parties, and errors ofany kind which might be obviated, removed, or curedif promptly presented, are waived unless seasonableobjection thereto is made at the taking of thedeposition.

(C) Objections to the form of written questionssubmitted under Rule 31 are waived unless served inwriting upon the party propounding them within thetime allowed for serving the succeeding cross orother questions and within 5 days after service of thelast questions authorized.

(4) AS TO COMPLETION AND RETURN OF

DEPOSITION. Errors and irregularities in the mannerin which the testimony is transcribed or thedeposition is prepared, signed, certified, sealed,indorsed, transmitted, filed, or otherwise dealt withby the officer under Rules 30 and 31 are waivedunless a motion to suppress the deposition or somepart thereof is made with reasonable promptnessafter such defect is, or with due diligence might havebeen, ascertained.

(Amended May 15, 1972, effective July 1, 1972;further amended July 26, 1990, effective September1, 1990; further amended May 7, 2004, effective July1, 2004.)

Rule 33. I N T E R R O G A T O R I E S TOPARTIES.

(a) Availability. Without leave of court orwritten stipulation, any party may serve upon anyother party written interrogatories, not exceeding 60in number, counting any subparts or subquestions asindividual questions, to be answered by the partyserved or, if the party served is a public or privatecorporation or a partnership or association orgovernmental agency, by any officer or agent, whoshall furnish such information as is available to theparty. Interrogatories may, without leave of court, beserved upon the plaintiff after commencement of theaction and upon any other party with or after serviceof the summons and complaint upon that party.Leave to serve additional interrogatories shall begranted to the extent consistent with the principles ofRule 26(b)(2).

(b) Answers and Objections.(1) Each interrogatory shall be answered

separately and fully in writing under oath, unless it isobjected to, in which event the objecting party shallstate the reasons for objection and shall answer to theextent the interrogatory is not objectionable.

(2) The answers are to be signed by the personmaking them, and the objections signed by theattorney making them.

(3) The party upon whom the interrogatorieshave been served shall serve a copy of the answers,and objections if any, within 30 days after the serviceof the interrogatories, except that a defendant mayserve answers or objections within 45 days afterservice of the summons and complaint upon thatdefendant. A shorter or longer time may be directedby the court or, in the absence of such an order,agreed to in writing by the parties subject to Rule 29.

(4) All grounds for an objection to aninterrogatory shall be stated with specificity. Anyground not stated in a timely objection is waivedunless the party's failure to object is excused by thecourt for good cause shown.

(5) The party submitting the interrogatories maymove for an order under Rule 37(a) with respect toany objection to or other failure to answer aninterrogatory.

(c) Scope; Use at Trial. Interrogatories mayrelate to any matters which can be inquired intounder Rule 26(b)(1), and the answers may be used tothe extent permitted by the rules of evidence.



An interrogatory otherwise proper is notnecessarily objectionable merely because an answerto the interrogatory involves an opinion or contentionthat relates to fact or the application of law to fact,but the court may order that such an interrogatoryneed not be answered until after designated discoveryhas been completed or until a pre-trial conference orother later time.

(d) Option to Produce Business Records.Where the answer to an interrogatory may be derivedor ascertained from the business records of the partyupon whom the interrogatory has been served orfrom an examination, audit or inspection of suchbusiness records, including a compilation, abstract orsummary thereof, and the burden of deriving orascertaining the answer is substantially the same forthe party serving the interrogatory as for the partyserved, it is a sufficient answer to such interrogatoryto specify the records from which the answer may bederived or ascertained and to afford to the partyserving the interrogatory reasonable opportunity toexamine, audit or inspect such records and to makecopies, compilations, abstracts or summaries. Aspecification shall be in sufficient detail to permit theinterrogating party to locate and to identify, asreadily as can the party served, the records fromwhich the answer may be ascertained.


Rule 34. PRODUCTION OF DOCUMENTSAND THINGS AND ENTRY UPONLAND FOR INSPECTION ANDOTHER PURPOSES.

(a) Scope. Any party may serve on any otherparty a request (1) to produce and permit the partymaking the request, or someone acting on therequestor’s behalf, to inspect and copy, anydesignated documents (including writings, drawings,graphs, charts, photographs, phonorecords, and otherdata compilations from which information can beobtained, translated, if necessary, by the respondentthrough detection devices into reasonably usableform), or to inspect and copy, test, or sample anytangible things which constitute or contain matterswithin the scope of Rule 26(b) and which are in thepossession, custody or control of the party upon

whom the request is served; or (2) to permit entryupon designated land or other property in thepossession or control of the party upon whom therequest is served for the purpose of inspection andmeasuring, surveying, photographing, testing, orsampling the property or any designated object oroperation thereon, within the scope of Rule 26(b).

(b) Procedure. The request may, without leaveof court, be served upon the plaintiff aftercommencement of the action and upon any otherparty with or after service of the summons andcomplaint upon that party. The request shall set forth,either by individual item or by category, the items tobe inspected and describe each with reasonableparticularity. The request shall specify a reasonabletime, place, and manner of making the inspection andperforming the related acts.

The party upon whom the request is served shallserve a written response within 30 days after theservice of the request, except that a defendant mayserve a response within 45 days after service of thesummons and complaint upon that defendant. Ashorter or longer time may be directed by the courtor, in the absence of such an order, agreed to inwriting by the parties, subject to Rule 29. Theresponse shall state, with respect to each item orcategory, that inspection and related activities will bepermitted as requested, unless the request is objectedto, in which event the reasons for the objection shallbe stated. If objection is made to part of an item orcategory, the part shall be specified and inspectionpermitted of the remaining parts. The partysubmitting the request may move for an order underRule 37(a) with respect to any objection to or otherfailure to respond to the request or any part thereof,or any failure to permit inspection as requested.

A party who produces documents for inspectionshall produce them as they are kept in the usualcourse of business or shall organize and label them tocorrespond with the categories in the request.

(c) Persons Not Parties. A person not a partyto the action may be compelled to producedocuments and things or to submit to an inspection asprovided in Rule 45.




Rule 35. PHYSICAL AND MENTALEXAMINATION OF PERSONS.

(a) Order for Examination. When the mentalor physical condition (including the blood group) ofa party, or of a person in the custody or under thelegal control of a party, is in controversy, the court inwhich the action is pending may order the party tosubmit to a physical or mental examination by asuitably licensed or certified examiner or to producefor examination the person in the party’s custody orlegal control. The order may be made only on motionfor good cause shown and upon notice to the personto be examined and to all parties and shall specify thetime, place, manner, conditions, and scope of theexamination and the person or persons by whom it isto be made.

(b) Report of Examiner.(1) If requested by the party against whom an

order is made under Rule 35(a) or the personexamined, the party causing the examination to bemade shall deliver to the requesting party a copy ofthe detailed written report of the examiner setting outthe examiner’s findings, including results of all testsmade, diagnoses and conclusions, together with likereports of all earlier examinations of the samecondition. After delivery the party causing theexamination shall be entitled upon request to receivefrom the party against whom the order is made a likereport of any examination, previously or thereaftermade, of the same condition, unless, in the case of areport of examination of a person not a party, theparty shows that the party is unable to obtain it. Thecourt on motion may make an order against a partyrequiring delivery of a report on such terms as arejust, and if an examiner fails or refuses to make areport the court may exclude the examiner’stestimony if offered at trial.

(2) By requesting and obtaining a report of theexamination so ordered or by taking the deposition ofthe examiner, the party examined waives anyprivilege the party may have in that action or anyother involving the same controversy, regarding thetestimony of every other person who has examined ormay thereafter examine the party in respect of thesame mental or physical condition.

(3) This subdivision applies to examinationsmade by agreement of the parties, unless theagreement expressly provides otherwise. Thissubdivision does not preclude discovery of a report

of an examiner or the taking of a deposition of theexaminer in accordance with the provisions of anyother rule.


Rule 36. REQUESTS FOR ADMISSION.(a) Request for Admission. A party may serve

upon any other party a written request for theadmission, for purposes of the pending action only,of the truth of any matters within the scope of Rule26(b)(1) set forth in the request that relate tostatements or opinions of fact or of the application oflaw to fact, including the genuineness of anydocuments described in the request. Copies ofdocuments shall be served with the request unlessthey have been or are otherwise furnished or madeavailable for inspection and copying. The requestmay, without leave of court, be served upon theplaintiff after commencement of the action and uponany other party with or after service of the summonsand complaint upon that party.

Each matter of which an admission is requestedshall be separately set forth. The matter is admittedunless, within 30 days after service of the request, orwithin such shorter or longer time as the court mayallow or as the parties may agree to in writing,subject to Rule 29, the party to whom the request isdirected serves upon the party requesting theadmission a written answer or objection addressed tothe matter, signed by the party or by the party’sattorney, but, unless the court shortens the time, adefendant shall not be required to serve answers orobjections before the expiration of 45 days afterservice of the summons and complaint upon thatdefendant. If objection is made, the reasons thereforshall be stated. The answer shall specifically denythe matter or set forth in detail the reasons why theanswering party cannot truthfully admit or deny thematter. A denial shall fairly meet the substance of therequested admission, and when good faith requiresthat a party qualify an answer or deny only a part ofthe matter of which an admission is requested, theparty shall specify so much of it as is true and qualifyor deny the remainder. An answering party may notgive lack of information or knowledge as a reason forfailure to admit or deny unless the party states thatthe party has made reasonable inquiry and that the



information known or readily obtainable by the partyis insufficient to enable the party to admit or deny. Aparty who considers that a matter of which anadmission has been requested presents a genuineissue for trial may not, on that ground alone, objectto the request; the party may, subject to theprovisions of Rule 37(c), deny the matter or set forthreasons why the party cannot admit or deny it.

The party who has requested the admissions maymove to determine the sufficiency of the answers orobjections. Unless the court determines that anobjection is justified, it shall order that an answer beserved. If the court determines that an answer doesnot comply with the requirements of this rule, it mayorder either that the matter is admitted or that anamended answer be served. The court may, in lieu ofthese orders, determine that final disposition of therequest be made at a pre-trial conference or at adesignated time prior to trial. The provisions of Rule37(a)(4) apply to the award of expenses incurred inrelation to the motion.

(b) Effect of Admission. Any matter admittedunder this rule is conclusively established unless thecourt on motion permits withdrawal or amendment ofthe admission. Subject to the provisions of Rule 16governing amendment of a pre-trial order, the courtmay permit withdrawal or amendment when thepresentation of the merits of the action will besubserved thereby and the party who obtained theadmission fails to satisfy the court that withdrawal oramendment will prejudice that party in maintaininghis or her action or defense on the merits. Anyadmission made by a party under this rule is for thepurpose of the pending action only and is not anadmission for any other purpose nor may it be usedagainst the party in any other proceeding.


Rule 37. FAILURE TO MAKE ORCOOPERATE IN DISCOVERY;SANCTIONS.

(a) Motion for Order Compelling Discovery.A party, upon reasonable notice to other parties andall persons affected thereby, may apply for an ordercompelling discovery as follows:

(1) APPROPRIATE COURT. An application for anorder to a party may be made to the court in which

the action is pending or, on matters related to adeposition, to the court in the circuit where thedeposition is being taken. An application for an orderto a person who is not a party shall be made to thecourt in the circuit where the deposition is being, oris to be, taken.

(2) MOTION. If a deponent fails to answer aquestion propounded or submitted under Rules 30 or31, or a corporation or other entity fails to make adesignation under Rule 30(b)(6) or 31(a), or a partyfails to answer an interrogatory submitted under Rule33, or if a party, in response to a request forinspection submitted under Rule 34, fails to respondthat inspection will be permitted as requested or failsto permit inspection as requested, the discoveringparty may move for an order compelling an answer,or a designation, or an order compelling inspection inaccordance with the request . The motion mustinclude a certification that the movant has in goodfaith conferred or attempted to confer with the personor party failing to make the discovery in an effort tosecure the information or material without courtaction. When taking a deposition on oralexamination, the proponent of the question maycomplete or adjourn the examination before applyingfor an order.

(3) EVASIVE OR INCOMPLETE ANSWER OR

RESPONSE. For purposes of this subdivision anevasive or incomplete answer or response is to betreated as a failure to answer or respond.



(4) EXPENSES AND SANCTIONS. (A) If the motion is granted or if the disclosure or

requested discovery is provided after the motion wasfiled, the court shall, after affording an opportunityto be heard, require the party or deponent whoseconduct necessitated the motion or the party orattorney advising such conduct or both of them topay to the moving party the reasonable expensesincurred in making the motion, including attorney'sfees, unless the court finds that the motion was filedwithout the movant's first making a good faith effortto obtain the disclosure or discovery without courtaction, or that the opposing party's nondisclosure,response, or objection was substantially justified, orthat other circumstances make an award of expensesunjust.

(B) If the motion is denied, the court may enterany protective order authorized under Rule 26(c) andshall, after affording an opportunity to be heard,require the moving party or the attorney filing themotion or both of them to pay to the party ordeponent who opposed the motion the reasonableexpenses incurred in opposing the motion, includingattorney's fees, unless the court finds that the makingof the motion was substantially justified or that othercircumstances make an award of expenses unjust.

(C) If the motion is granted in part and denied inpart, the court may enter any protective orderauthorized under Rule 26(c) and may, after affordingan opportunity to be heard, apportion the reasonableexpenses incurred in relation to the motion amongthe parties and persons in a just manner.

(b) Failure to Comply With Order.(1) SANCTIONS BY COURT IN CIRCUIT WHERE

DEPOSITION IS TAKEN. If a deponent fails to besworn or to answer a question after being directed todo so by the court in the circuit in which thedeposition is being taken, the failure may beconsidered a contempt of that court.

(2) SANCTIONS BY COURT IN WHICH ACTION IS

PENDING. If a party or an officer, director, ormanaging agent of a party or a person designatedunder Rule 30(b)(6) or 31(a) to testify on behalf of aparty fails to obey an order to provide or permitdiscovery, including an order made undersubdivision (a) of this rule or Rule 35, or if a partyfails to obey an order entered under Rule 26(f), thecourt in which the action is pending may make suchorders in regard to the failure as are just, and among

others the following:(A) An order that the matters regarding which

the order was made or any other designated factsshall be taken to be established for the purposes ofthe action in accordance with the claim of the partyobtaining the order;

(B) An order refusing to allow the disobedientparty to support or oppose designated claims ordefenses, or prohibiting him or her from introducingdesignated matters in evidence;

(C) An order striking out pleadings or partsthereof, or staying further proceedings until the orderis obeyed, or dismissing the action or proceeding orany part thereof, or rendering a judgment by defaultagainst the disobedient party;

(D) In lieu of any of the foregoing orders or inaddition thereto, an order treating as a contempt ofcourt the failure to obey any orders except an orderto submit to a physical or mental examination;

(E) Where a party has failed to comply with anorder under Rule 35(a) requiring that party toproduce another for examination, such orders as arelisted in paragraphs (A), (B), and (C) of thissubdivision, unless the party failing to comply showsthat that party is unable to produce such person forexamination.

In lieu of any of the foregoing orders or inaddition thereto, the court shall require the partyfailing to obey the order or the attorney advising thatparty or both to pay the reasonable expenses,including attorney's fees, caused by the failure,unless the court finds that the failure wassubstantially justified or that other circumstancesmake an award of expenses unjust.

(c) Failure to Disclose; False or MisleadingDisclosure; Refusal to Admit.

(1) A party that without substantial justificationfails to amend a prior response to discovery asrequired by Rule 26(e)(2), is not, unless such failureis harmless, permitted to use as evidence at a trial, ata hearing, or on a motion any witness or informationnot so disclosed. In addition to or in lieu of thissanction, the court, on motion and after affording anopportunity to be heard, may impose otherappropriate sanctions. In addition to requiringpayment of reasonable expenses, including attorney'sfees, caused by the failure, these sanctions mayinclude any of the actions authorized under Rule37(b)(2)(A), (B), and (C) and may include informing



the jury of the failure to make the disclosure.(2) If a party fails to admit the genuineness of

any document or the truth of any matter as requestedunder Rule 36, and if the party requesting theadmissions thereafter proves the genuineness of thedocument or the truth of the matter, the requestingparty may apply to the court for an order requiringthe other party to pay the reasonable expensesincurred in making that proof, including reasonableattorney's fees. The court shall make the order unlessit finds that (A) the request was held objectionablepursuant to Rule 36(a), or (B) the admission soughtwas of no substantial importance, or (C) the partyfailing to admit had reasonable ground to believe thathe or she might prevail on the matter, or (D) therewas other good reason for the failure to admit.

(d) Failure of Party to Attend at OwnDeposition or Serve Answers to Interrogatories orRespond to Request for Inspection. If a party or anofficer, director, or managing agent of a party or aperson designated under Rule 30(b)(6) or 31(a) totestify on behalf of a party fails (1) to appear beforethe officer who is to take the deposition, after beingserved with a proper notice, or (2) to serve answersor objections to interrogatories submitted under Rule33, after proper service of the interrogatories, or (3)to serve a written response to a request for inspectionsubmitted under Rule 34, after proper service of therequest, the court in which the action is pending onmotion may make such orders in regard to the failureas are just, and among others it may take any actionauthorized under subparagraphs (A), (B), and (C) ofsubdivision (b)(2) of this rule. Any motionspecifying a failure under clause (2) or (3) of thissubdivision shall include a certification that themovant has in good faith conferred or attempted toconfer with the party failing to answer or respond inan effort to obtain such answer or response withoutcourt action. In lieu of any order or in additionthereto, the court shall require the party failing to actor the attorney advising that party or both to pay thereasonable expenses, including attorney's fees,caused by the failure, unless the court finds that thefailure was substantially justified or that othercircumstances make an award of expenses unjust.

The failure to act described in this subdivisionmay not be excused on the ground that the discoverysought is objectionable unless the party failing to acthas a pending motion for a protective order as

provided by Rule 26(c).(e) Expenses Against the State. Except to the

extent permitted by statute, expenses and fees maynot be awarded against the State or a county underthis rule.


VI. TRIALS

Rule 38. JURY TRIAL OF RIGHT.(a) Right preserved. The right of trial by jury as

given by the Constitution or a statute of the State orthe United States shall be preserved to the partiesinviolate.

(b) Demand. Any party may demand a trial byjury of any issue triable of right by a jury by (1)serving upon the other parties a demand therefor inwriting at any time after the commencement of theaction and not later than 10 days after the service ofthe last pleading directed to such issue, and (2) filingthe demand as required by Rule 5(d). Such demandmay be indorsed upon a pleading of the party. Whereby statute a jury trial is allowed on appeal to thecircuit court from the prior determination of anycourt or administrative body, a trial by jury may behad if demanded in the notice of appeal, and if notdemanded in the notice, the appellee may have a trialby jury by filing a demand within 10 days after thecase is docketed in the circuit court.

(c) Same: Specification of issues. In its demanda party may specify the issues which it wishes sotried; otherwise the party shall be deemed to havedemanded trial by jury for all the issues so triable. Ifthe party has demanded trial by jury for only some ofthe issues, any other party within 10 days afterservice of the demand or such lesser time as the courtmay order, may serve a demand for trial by jury ofany other or all of the issues of fact in the action.

(d) Waiver. The failure of a party to serve andfile a demand as required by this rule and to file it asrequired by Rule 5(d) constitutes a waiver by theparty of trial by jury. A demand for trial by jurymade as herein provided may not be withdrawnwithout the consent of the parties.




Rule 39. TRIAL BY JURY OR BY THECOURT.

(a) By jury. When trial by jury has beendemanded as provided in Rule 38, the action shall bedesignated upon the docket as a jury action. The trialof all issues so demanded shall be by jury, unless (1)the parties or their attorneys of record, by writtenstipulation filed with the court or by an oralstipulation made in open court and entered in therecord, consent to trial by the court sitting without ajury or (2) the court upon motion or of its owninitiative finds that a right of trial by jury of some orall of those issues does not exist under theConstitution or statutes of the United States or theState.

(b) By the court. Issues not demanded for trialby jury as provided in Rule 38 shall be tried by thecourt; but, notwithstanding the failure of a party todemand a jury in an action in which such a demandmight have been made of right, the court in itsdiscretion upon motion may order a trial by a jury ofany or all issues.

(c) Advisory jury and trial by consent. In allactions not triable of right by a jury the court uponmotion or of its own initiative may try any issue withan advisory jury. The court, with the consent of theparties, may order a trial with a jury whose verdictshall have the same effect as if trial by jury had beena matter of right.

Rule 40. ASSIGNMENT OF CASES FORTRIAL.

The circuit courts shall provide by rule for theplacing of actions upon the trial calendar (1) withoutrequest of the parties or (2) upon request of a partyand notice to the other parties or (3) in such othermanner as the courts deem expedient. Precedenceshall be given to actions entitled thereto by statute.

Rule 41. DISMISSAL OF ACTIONS.(a) Voluntary dismissal: Effect thereof. (1) BY PLAINTIFF; BY STIPULATION. An action

may be dismissed by the plaintiff without order ofcourt (A) by filing a notice of dismissal at any timebefore the return date as provided in Rule 12(a) orservice by the adverse party of an answer or of amotion for summary judgment, or (B) by filing astipulation of dismissal signed by all parties whohave appeared in the action. Unless otherwise stated

in the notice of dismissal or stipulation, the dismissalis without prejudice, except that a notice of dismissaloperates as an adjudication upon the merits whenfiled by a plaintiff who has once dismissed in anycourt of the United States, or of any state, territory orinsular possession of the United States an actionbased on or including the same claim.

(2) BY ORDER OF COURT. Except as provided inparagraph (1) of this subdivision of this rule, anaction shall not be dismissed at the plaintiff'sinstance save upon order of the court and upon suchterms and conditions as the court deems proper. If acounterclaim has been pleaded by a defendant priorto the service upon the defendant of the plaintiff'smotion to dismiss, the action shall not be dismissedagainst the defendant's objection unless thecounterclaim can remain pending for independentadjudication by the court. Unless otherwise specifiedin the order, a dismissal under this paragraph iswithout prejudice.

(b) Involuntary dismissal: Effect thereof. Forfailure of the plaintiff to prosecute or to comply withthese rules or any order of court, a defendant maymove for dismissal of an action or of any claimagainst it. Unless the court in its order for dismissalotherwise specifies, a dismissal under thissubdivision and any dismissal not provided for in thisrule, other than a dismissal for lack of jurisdiction,for improper venue, or for failure to join a partyunder Rule 19, operates as an adjudication upon themerits.

(c) Dismissal of counterclaim, cross-claim, orthird-party claim. The provisions of this rule applyto the dismissal of any counterclaim, cross-claim, orthird-party claim. A voluntary dismissal by theclaimant alone pursuant to paragraph (1) ofsubdivision (a) of this rule shall be made before aresponsive pleading is served or, if there is none,before the introduction of evidence at the trial orhearing.

(d) Costs of previously-dismissed action. If aplaintiff who has once dismissed an action in anycourt commences an action based upon or includingthe same claim against the same defendant, the courtmay make such order for the payment of costs of theaction previously dismissed as it may deem properand may stay the proceedings in the action until theplaintiff has complied with the order.

(Amended May 15, 1972, effective July 1, 1972;



further amended December 7, 1999, effectiveJanuary 1, 2000; further amended December 7,2005, effective January 1, 2006.)

Rule 42. CONSOLIDATION; SEPARATETRIALS.

(a) Consolidation. When actions involving acommon question of law or fact are pending beforethe court, it may order a joint hearing or trial of anyor all the matters in issue in the actions; it may orderall the actions consolidated; and it may make suchorders concerning proceedings therein as may tend toavoid unnecessary costs or delay.

(b) Separate trials. The court, in furtherance ofconvenience or to avoid prejudice, or when separatetrials will be conducive to expedition and economy,may order a separate trial of any claim, cross-claim,counterclaim, or third-party claim, or of any separateissue or of any number of claims, cross-claims,counterclaims, third-party claims, or issues, alwayspreserving inviolate the right of trial by jury as givenby the Constitution or a statute of the State or theUnited States.


Rule 43. TAKING OF TESTIMONY.(a) Form. In all trials the testimony of witnesses

shall be taken orally in open court, unless otherwiseprovided by the Hawai#i Rules of Evidence, statute,or other rules adopted by the Hawai#i Supreme Court.

(b) Presentation of expert testimony. Thecourt may schedule the presentation of all experttestimony during the same phase of the trial.

(c) Record of excluded evidence. In an actiontried by a jury, if an objection to a questionpropounded to a witness is sustained by the court, theexamining attorney may make a specific offer ofwhat he expects to prove by the answer of thewitness. The court may require the offer to be madeout of the hearing of the jury. The court may addsuch other or further statement as clearly shows thecharacter of the evidence, the form in which it wasoffered, the objection made, and the ruling thereon.In actions tried without a jury the same proceduremay be followed, except that the court upon requestshall take and report the evidence in full, unless itclearly appears that the evidence is not admissible onany ground or that the witness is privileged.

(d) Affirmation in lieu of oath. Whenever

under these rules an oath is required to be taken, asolemn affirmation may be accepted in lieu thereof.

(e) Evidence on motions. When a motion isbased on facts not appearing of record the court mayhear the matter on affidavits presented by therespective parties, but the court may direct that thematter be heard wholly or partly on oral testimony ordepositions.

(f) Interpreters. The court may appoint aninterpreter of its own selection and may fix theinterpreter's reasonable compensation. Thecompensation shall be paid out of funds provided bylaw or by one or more of the parties as the court maydirect, and may be taxed ultimately as costs, in thediscretion of the court.

(Amended May 15, 1972, effective July 1, 1972;further amended July 26, 1990, effective September1, 1990; further amended December 7, 1999,effective January 1, 2000; further amended March24, 2000, effective July 1, 2000.)

Rule 44. PROOF OF OFFICIAL RECORD.(a) Authentication. (1) DOMESTIC. An official record kept within the

United States, or any state, district, commonwealth,or within a territory subject to the administrative orjudicial jurisdiction of the United States, or an entrytherein, when admissible for any purpose, may beevidenced by an official publication thereof or by acopy attested by the officer having the legal custodyof the record, or by a deputy, and accompanied by acertificate that the officer has the custody. Thecertificate may be made by a judge of a court ofrecord of the district or political subdivision in whichthe record is kept, authenticated by the seal of thecourt, or may be made by any public officer havinga seal of office and having official duties in thedistrict or political subdivision in which the record iskept, authenticated by the seal of office.

(2) FOREIGN. A foreign official record, or anentry therein, when admissible for any purpose, maybe evidenced by an official publication thereof; or acopy thereof, attested by a person authorized to makethe attestation, and accompanied by a finalcertification as to the genuineness of the signatureand official position (A) of the attesting person, or(B) of any foreign official whose certificate ofgenuineness of signature and official position relatesto the attestation or is in a chain of certificates of



genuineness of signature and official positionrelating to the attestation. A final certification maybe made by a secretary of embassy or legation,consul general, consul, vice consul, or consular agentof the United States, or a diplomatic or consularofficial of the foreign country assigned or accreditedto the United States. If reasonable opportunity hasbeen given to all parties to investigate theauthenticity and accuracy of the documents, the courtmay, for good cause shown, (A) admit an attestedcopy without final certification or (B) permit theforeign official record to be evidenced by an attestedsummary with or without a final certification. Thefinal certification is unnecessary if the record and theattestation are certified as provided in a treaty orconvention to which the United States and theforeign country in which the official record is locatedare parties.

(b) Lack of record. A written statement thatafter diligent search no record or entry of a specifiedtenor is found to exist in the records designated bythe statement, authenticated as provided insubdivision (a)(1) of this rule in the case of adomestic record, or complying with the requirementsof subdivision (a)(2) of this rule for a summary in thecase of a foreign record, is admissible as evidencethat the records contain no such record or entry.

(c) Other proof. This rule does not prevent theproof of official records or of entry or lack of entrytherein by any other method authorized by law.


Rule 44.1. DETERMINATION OF FOREIGNLAW.

A party who intends to raise an issue concerningthe law of a foreign country shall give notice bypleadings or other reasonable written notice. Thecourt, in determining foreign law, may consider anyrelevant material or source, including testimony,whether or not submitted by a party or admissibleunder the Hawai#i Rules of Evidence. The court'sdetermination shall be treated as a ruling on aquestion of law.

(Added May 15, 1972, effective July 1, 1972;amended July 26, 1990, effective September 1, 1990;further amended December 7, 1999, effectiveJanuary 1, 2000.)

Rule 45. SUBPOENA.(a) For attendance of witnesses; form;

issuance. Every subpoena shall be issued by theclerk of the circuit court of the circuit in which theaction is pending under the seal of the court, shallstate the name of the court and the title of the action,and shall command each person to whom it isdirected to attend and give testimony at a time andplace therein specified. The clerk shall issue asubpoena, or a subpoena for the production ofdocumentary evidence, signed and sealed butotherwise in blank, to a party requesting it, who shallfill it in before service.

(b) For production of documentary evidence.A subpoena may also command the person to whomit is directed to produce the books, papers,documents, or tangible things designated therein; butthe court, upon motion made promptly and in anyevent at or before the time specified in the subpoenafor compliance therewith, may (1) quash or modifythe subpoena if it is unreasonable and oppressive or(2) condition denial of the motion upon theadvancement by the person in whose behalf thesubpoena is issued of the reasonable cost ofproducing the books, papers, documents, or tangiblethings.

(c) Service. A subpoena may be served at anyplace within the State. A subpoena may be served:(1) anywhere in the State by the sheriff or deputysheriff or by any other person who is not a party andis not less than 18 years of age; or (2) in any countyby the chief of police or a duly authorizedsubordinate. Service of a subpoena upon a personnamed therein shall be made by delivering a copythereof to such person and by tendering to suchperson the fees for one day's attendance and themileage allowed by law. When the subpoena isissued on behalf of the State or a county, or anofficer or agency of the State or a county, fees andmileage need not be tendered.

(d) Subpoena for taking depositions; place ofexamination.

(1) Proof of service of a notice to take adeposition as provided in Rules 30(b) and 31(a)constitutes a sufficient authorization for the issuanceby the clerk of the circuit court of the circuit inwhich the deposition is to be taken of subpoenas forthe persons named or described therein. Thesubpoena may command the person to whom it is



directed to produce and permit inspection andcopying of designated books, papers, documents, ortangible things which constitute or contain matterswithin the scope of the examination permitted byRule 26(b), but in that event the subpoena will besubject to the provisions of Rule 26(c) andsubdivision (b) of this Rule 45.

The person to whom the subpoena is directedmay, within 10 days after the service thereof or on orbefore the time specified in the subpoena forcompliance if such time is less than 10 days afterservice, serve upon the attorney designated in thesubpoena written objection to inspection or copyingof any or all of the designated materials. If objectionis made, the party serving the subpoena shall not beentitled to inspect and copy the materials exceptpursuant to an order of the court from which thesubpoena was issued. The party serving the subpoenamay, if objection has been made, move upon noticeto the deponent for an order at any time before orduring the taking of the deposition.

(2) A resident of the State may be required toattend an examination only in the county wherein theperson resides or is employed or transacts business inperson, or at such other convenient place as is fixedby an order of court. A nonresident of the Statesubpoenaed within the State may be required toattend only in the county wherein the person isserved with a subpoena, or at such other convenientplace as is fixed by an order of court.

(e) Duties in responding to subpoena. (1) A person responding to a subpoena to

produce documents shall produce them as they arekept in the usual course of business or shall organizeand label them to correspond with the categories inthe demand.

(2) When information subject to a subpoena iswithheld on a claim that it is privileged or subject toprotection as trial preparation materials, the claimshall be made expressly and shall be supported by adescription of the nature of the documents,communications, or things not produced that issufficient to enable the demanding party to contestthe claim.

(f) Contempt. Failure by any person withoutadequate excuse to obey a subpoena served upon theperson may be deemed a contempt of the court fromwhich the subpoena issued.

(Amended May 15, 1972, effective July 1, 1972;

further amended December 7, 1999, effectiveJanuary 1, 2000.)

Rule 46. EXCEPTIONS UNNECESSARY.Formal exceptions to rulings or orders of court

are unnecessary; but for all purposes for which anexception has heretofore been necessary it issufficient that a party, at the time the ruling or orderof the court is made or sought, makes known to thecourt the action which the party desires the court totake or the party's objection to the action of the courtand grounds therefor; and, if a party has noopportunity to object to a ruling or order at the timeit is made, the absence of an objection does notthereafter prejudice the party.




Rule 47. JURORS.(a) Conduct of jury selection. At the discretion

of the court, each party may present a "mini-openingstatement" to the jury panel. The mini-openingstatement shall be limited to a brief statement of thefacts expected to be proven prior to thecommencement of jury selection. The court shallpermit the parties or their attorneys to conduct theexamination of each prospective juror. The courtmay conduct such examination, but in such instance,the court shall permit the part ies or their attorneys tosupplement the examination by further inquiry.

(b) Alternate jurors. The court may direct thatnot more than six jurors in addition to the regularjury be called and impanelled to sit as alternatejurors. Alternate jurors in the order in which they arecalled shall replace jurors who, prior to the time thejury retires to consider its verdict, become or arefound to be unable or disqualified to perform theirduties. Alternate jurors shall be drawn in the samemanner, shall have the same qualifications, shall besubject to the same examination and challenges, shalltake the same oath, and shall have the samefunctions, powers, facilities, and privileges as theregular jurors. An alternate juror who does notreplace a regular juror shall be discharged after thejury retires to consider its verdict. Each side isentitled to 1 peremptory challenge in addition tothose otherwise allowed by law if 1 or 2 alternatejurors are to be impanelled, 2 peremptory challengesif 3 or 4 alternate jurors are to be impanelled, and 3peremptory challenges if 5 or 6 alternate jurors are tobe impanelled. The additional peremptory challengesmay be used against an alternate juror only, and theother peremptory challenges allowed by law shall notbe used against an alternate juror.

(c) Questioning by jury. At the discretion ofthe court, jurors may be allowed to suggest questionsto be asked of witnesses. Each juror question must bein writing and delivered to the court throughappropriate court personnel. Upon receipt of aquestion, the court shall review the propriety ofsubmitting the question to the witness with theparties or their attorneys on the record, but outsidethe hearing of the jury. If the court deems thequestion appropriate and subject to the Hawai#i Rulesof Evidence (HRE), the court may ask the question.The parties shall have an opportunity to examinematters touched upon by any juror question

submitted to a witness, subject to the HRE. Anyparty may object to the asking of a question, but thecourt may ask the question over any objection afterthe objection has been placed on the record. The juryshall be pre-instructed about the procedure for askingquestions.

(d) Note taking by jurors. Except upon goodcause articulated by the court, jurors shall be allowedto take notes during trial. The court's good causefindings need not be written, but must be articulatedclearly in a reported proceeding.

(e) Excuse. The court may for good causeexcuse a juror from service during trial ordeliberation.

(Amended May 15, 1972, effective July 1, 1972;further amended December 7, 1999, effectiveJanuary 1, 2000; further amended March 24, 2000,effective July 1, 2000.)

Rule 48. JURIES OF LESS THAN TWELVE-- MAJORITY VERDICT.

The parties may stipulate that the jury shallconsist of any number less than 12 or that a verdict ora finding of a stated majority of the jurors shall betaken as the verdict or finding of the jury. (Seesection 635-20 of the Hawai#i Revised Statutes.)

Rule 49. SPECIAL VERDICTS ANDINTERROGATORIES.

(a) Special verdicts. The court may require ajury to return only a special verdict in the form of aspecial written finding upon each issue of fact. Inthat event the court may submit to the jury writtenquestions susceptible of categorical or other briefanswer or may submit written forms of the severalspecial findings which might properly be made underthe pleadings and evidence; or it may use such othermethod of submitting the issues and requiring thewritten findings thereon as it deems mostappropriate. The court shall give to the jury suchexplanation and instruction concerning the matterthus submitted as may be necessary to enable the juryto make its findings upon each issue. If in so doingthe court omits any issue of fact raised by thepleadings or by the evidence, each party waives theright to a trial by jury of the issue so omitted unlessbefore the jury retires the party demands itssubmission to the jury. As to an issue omittedwithout such demand the court may make a finding;



or, if it fails to do so, it shall be deemed to have madea finding in accord with the judgment on the specialverdict.

(b) General verdict accompanied by answerto interrogatories. The court may submit to the jury,together with appropriate forms for a general verdict,written interrogatories upon one or more issues offact the decision of which is necessary to a verdict.The court shall give such explanation or instructionas may be necessary to enable the jury both to makeanswers to the interrogatories and to render a generalverdict, and the court shall direct the jury both tomake written answers and to render a general verdict.When the general verdict and the answers areharmonious, the appropriate judgment upon theverdict and answers shall be entered pursuant to Rule58. When the answers are consistent with each otherbut one or more is inconsistent with the generalverdict, judgment may be entered pursuant to Rule58 in accordance with the answers, notwithstandingthe general verdict, or the court may return the juryfor further consideration of its answers and verdict ormay order a new trial. When the answers areinconsistent with each other and one or more islikewise inconsistent with the general verdict,judgment shall not be entered, but the court shallreturn the jury for further consideration of itsanswers and verdict or shall order a new trial.


Rule 50. JUDGMENT AS A MATTER OFL A W I N J U R Y T R I A L S ;ALTERNATIVE MOTION FORNEW TRIAL; CONDITIONALRULINGS.

(a) Judgment as a matter of law.(1) If during a trial by jury a party has been fully

heard on an issue and there is no legally sufficientevidentiary basis for a reasonable jury to find for thatparty on that issue, the court may determine the issueagainst that party and may grant a motion forjudgment as a matter of law against that party withrespect to a claim or defense that cannot under thecontrolling law be maintained or defeated without afavorable finding on that issue.

(2) Motions for judgment as a matter of law maybe made at any time before submission of the case to

the jury. Such a motion shall specify the judgmentsought and the law and the facts on which themoving party is entitled to the judgment.

(b) Renewing motion for judgment after trial;alternative motion for new trial. If, for any reason,the court does not grant a motion for judgment as amatter of law made at the close of all the evidence,the court is considered to have submitted the actionto the jury subject to the court's later deciding thelegal questions raised by the motion. The movantmay renew its request for judgment as a matter oflaw by filing a motion no later than 10 days afterentry of judgment - and may alternatively request anew trial or join a motion for a new trial under Rule59. In ruling on a renewed motion, the court may:

(1) if a verdict was returned:(A) allow the judgment to stand,(B) order a new trial, or(C) direct entry of judgment as a matter of law;

or (2) if no verdict was returned:(A) order a new trial, or(B) direct entry of judgment as a matter of law.(c) Granting renewed motion for judgment as

a matter of law; conditional rulings; new trialmotion.

(1) If the renewed motion for judgment as amatter of law is granted, the court shall also rule onthe motion for a new trial, if any, by determiningwhether it should be granted if the judgment isthereafter vacated or reversed, and shall specify thegrounds for granting or denying the motion for thenew trial. If the motion for a new trial is thusconditionally granted, the order thereon does notaffect the finality of the judgment. In case the motionfor a new trial has been conditionally granted and thejudgment is reversed on appeal, the new trial shallproceed unless the appellate court has otherwiseordered. In case the motion for a new trial has beenconditionally denied, the appellee on appeal mayassert error in that denial; and if the judgment isreversed on appeal, subsequent proceedings shall bein accordance with the order of the appellate court.

(2) Any motion for a new trial under Rule 59 bya party against whom judgment as a matter of law isrendered shall be filed no later than 10 days afterentry of the judgment.



(d) Same: Denial of motion for judgment as amatter of law. If the motion for judgment as a matterof law is denied, the party who prevailed on thatmotion may, as appellee, assert grounds entitling theparty to a new trial in the event the appellate courtconcludes that the trial court erred in denying themotion for judgment. If the appellate court reversesthe judgment, nothing in this rule precludes it fromdetermining that the appellee is entitled to a newtrial, or from directing the trial court to determinewhether a new trial shall be granted.

(Amended May 15, 1972, effective July 1, 1972;further amended December 7, 1999, effectiveJanuary 1, 2000; further amended effective January3, 2000.)

Rule 51. INSTRUCTIONS TO JURY.(a) Pre-instruction. Prior to the presentation of

evidence, the court may pre-instruct the jury on theelements of the pleaded causes of action and claimeddefenses.

(b) Requests. At the close of the evidence or atsuch earlier time during the trial as the courtreasonably directs, any party may file writtenrequests that the court instruct the jury on the law asset forth in the requests.

(c) Settlement. When requests are filed, counselshall be entitled to be heard thereon. The court shallinform counsel of its proposed action upon therequests prior to their arguments to the jury.Whenever the court refuses to give any requestedinstruction, the court shall write the word "refused"in the margin thereof. Whenever the court approvesany requested instruction, the court shall write theword "given" in the margin thereof. Whenever thecourt modifies any requested instruction, the courtshall mark the same in such manner that it shalldistinctly appear what part is refused and what partis given. Instructions to which no objection is madeshall be marked "given by agreement" and no laterobjection thereto may be made or allowed. Unlessthe court shall take action pursuant to subdivision (d)of this rule, instructions settled as above set forthshall be read to the jury.

(d) Court's instructions. The court may revisethe language of any or all of the requestedinstructions which are approved by the court inwhole or in part pursuant to subdivision (c) of thisrule and of any or all of the requested instructions to

which no objection is made, and may combine suchinstructions, with or without any additionalinstructions which the court shall deem appropriate,in such manner as the court believes will eliminaterepetition and will afford to the jury an adequate andunderstandable charge. If no written requests forinstructions are filed the court shall prepare its owninstructions. Any revision made and any instructionsprepared by the court pursuant to the foregoingprovisions shall be reduced by the court to writing,and counsel shall be entitled to be heard thereon. Thecourt shall inform counsel of its proposed action withrespect to any such revision made or instructionsprepared by the court, and any changes therein madeby the court shall be reduced to writing andsubmitted to counsel prior to their arguments to thejury. Instructions settled as above set forth shall beread to the jury.

(e) Oral comment. The court shall in no caseorally qualify, modify or explain to the jury anyinstruction, whether settled pursuant to subdivision(c) or pursuant to subdivision (d) of this rule. If,during deliberation on its verdict, the jury shallrequest further instructions, the court may furtherinstruct the jury in accordance with instructionsprepared by the court and reduced to writing, firstsubmitting the same to counsel.

(f) Instructions and objections. Except upongood cause articulated by the court, the court shallinstruct the jury before the arguments are begun andshall provide to each juror, including alternates, acopy of the jury instructions, to follow along asinstructions are read. The court's good cause findingsneed not be written, but must be articulated clearly ina reported proceeding. The court may, as it deemsnecessary or appropriate, give additional instructionsafter arguments are concluded and before the juryretires. No party may assign as error the giving or therefusal to give, or the modification of, an instruction,whether settled pursuant to subdivision (c) orsubdivision (d), of this rule, unless the party objectsthereto before the jury retires to consider its verdict,stating distinctly the matter to which the partyobjects and the grounds of the objection. Opportunityshall be given to make the objection out of thehearing of the jury.

(Amended December 7, 1999, effective January1, 2000; further amended March 24, 2000, effectiveJuly 1, 2000.)



Rule 52. FINDINGS BY THE COURT.(a) Effect. In all actions tried upon the facts

without a jury or with an advisory jury, the courtshall find the facts specially and state separately itsconclusions of law thereon, and judgment shall beentered pursuant to Rule 58; and in granting orrefusing interlocutory injunctions the court shallsimilarly set forth the findings of fact andconclusions of law which constitute the grounds ofits action. Requests for findings are not necessary forpurposes of review. Findings of fact shall not be setaside unless clearly erroneous, and due regard shallbe given to the opportunity of the trial court to judgethe credibility of the witnesses. The findings of amaster, to the extent that the court adopts them, shallbe considered as the findings of the court. If anopinion or memorandum of decision is filed, it willbe sufficient if the findings of fact and conclusions oflaw appear therein. Findings of fact and conclusionsof law are unnecessary on decisions of motions underRules 12 or 56 or any other motion except asprovided in subdivisions (b) and (c) of this rule.

(b) Amendment. Upon motion of a party madenot later than 10 days after entry of judgment thecourt may amend its findings or make additionalfindings and may amend the judgment accordingly.The motion may be made with a motion for a newtrial pursuant to Rule 59. When findings of fact aremade in actions tried by the court without a jury, thequestion of the sufficiency of the evidence to supportthe findings may thereafter be raised whether or notthe party raising the question has made in the circuitcourt an objection to such findings or has made amotion to amend them or a motion for judgment.

(c) Judgment on partial findings. If during atrial without a jury a party has been fully heard on anissue and the court finds against the party on thatissue, the court may enter judgment as a matter oflaw against that party with respect to a claim ordefense that cannot under the controlling law bemaintained or defeated without a favorable findingon that issue, or the court may decline to render anyjudgment until the close of all the evidence. Such ajudgment shall be supported by findings of fact andconclusions of law as required by subdivision (a) ofthis rule.


Rule 53. MASTERS.(a) Appointment and compensation. The court

in which any action is pending may appoint a specialmaster therein. As used in these rules the word"master" includes a referee, an auditor, an examiner,and an assessor. The compensation to be allowed toa master shall be fixed by the court, and shall becharged upon such of the parties or paid out of anyfund or subject matter of the action, which is in thecustody and control of the court as the court maydirect. The master shall not retain the report assecurity for compensation; but when the partyordered to pay the compensation allowed by thecourt does not pay it after notice and within the timeprescribed by the court, the master is entitled to awrit of execution against the delinquent party.

(b) Reference. A reference to a master shall bethe exception and not the rule. In actions to be triedby a jury, a reference shall be made only when theissues are complicated; in actions to be tried withouta jury, save in matters of account and of difficultcomputation of damages, a reference shall be madeonly upon a showing that some exceptional conditionrequires it.

(c) Powers. The order of reference to the mastermay specify or limit the master's powers and maydirect the master to report only upon particular issuesor to do or perform particular acts or to receive andreport evidence only and may fix the time and placefor filing of the master's report.

(Added July 26, 1990, effective September 1,1990; amended December 7, 1999, effective January1, 2000.)



VII. JUDGMENT

Rule 54. J U D G M E N T S ; C O S T S ;ATTORNEYS' FEES.

(a) Definition; form. "Judgment" as used inthese rules includes a decree and any order fromwhich an appeal lies. A judgment shall not contain arecital of pleadings, the report of a master, or therecord of prior proceedings.

(b) Judgment upon multiple claims orinvolving multiple parties. When more than oneclaim for relief is presented in an action, whether asa claim, counterclaim, cross-claim, or third-partyclaim, or when multiple parties are involved, thecourt may direct the entry of a final judgment as toone or more but fewer than all of the claims orparties only upon an express determination that thereis no just reason for delay and upon an expressdirection for the entry of judgment. In the absence ofsuch determination and direction, any order or otherform of decision, however designated, whichadjudicates fewer than all the claims or the rights andliabilities of fewer than all the parties shall notterminate the action as to any of the claims or parties,and the order or other form of decision is subject torevision at any time before the entry of judgmentadjudicating all the claims and the rights andliabilities of all the parties.

(c) Demand for judgment. A judgment bydefault shall not be different in kind from or exceedin amount that prayed for in the demand forjudgment. Except as to a party against whom ajudgment is entered by default, every final judgmentshall grant the relief to which the party in whosefavor it is rendered is entitled, even if the party hasnot demanded such relief in the party's pleadings.

(d) Costs; attorneys' fees. (1) COSTS OTHER THAN ATTORNEYS' FEES.

Except when express provision therefor is madeeither in a statute or in these rules, costs shall beallowed as of course to the prevailing party unlessthe court otherwise directs; but costs against theState or a county, or an officer or agency of the Stateor a county, shall be imposed only to the extentpermitted by law. Costs may be taxed by the clerk on48 hours' notice. On motion served within 5 daysthereafter, the action of the clerk may be reviewed bythe court.

(2) ATTORNEYS' FEES.

(A) Claims for attorneys' fees and related non-taxable expenses shall be made by motion unless thesubstantive law governing the action provides for therecovery of such fees as an element of damages to beproved at trial.

(B) Unless otherwise provided by statute or orderof the court, the motion must be filed and served nolater than 14 days after entry of an appealable orderor judgment; must specify the judgment and thestatute, rule, or other grounds enti tling the movingparty to the award; and must state the amount orprovide a fair estimate of the amount sought. Ifdirected by the court, the motion shall also disclosethe terms of any agreement with respect to fees to bepaid for the services for which claim is made.

(C) The provisions of subparagraphs (A) and (B)do not apply to claims for fees and expenses assanctions for violations of rules.


Rule 55. DEFAULT.(a) Entry. When a party against whom a

judgment for affirmative relief is sought has failed toplead or otherwise defend as provided by these rulesand that fact is made to appear by affidavit orotherwise, the clerk shall enter the party's default.

(b) Judgment. Judgment by default may beentered as follows:

(1) BY THE CLERK. When the plaintiff's claimagainst a defendant is for a sum certain or for a sumwhich can by computation be made certain, the clerkupon request of the plaintiff and upon affidavit of theamount due shall enter judgment for that amount andcosts against the defendant, if the defendant has beendefaulted for failure to appear and is not an infant orincompetent person.

(2) BY THE COURT. In all other cases the partyentitled to a judgment by default shall apply to thecourt therefor; but no judgment by default shall beentered against an infant or incompetent personunless represented in the action by a guardian, orother such representative who has appeared therein,and upon whom service may be made under Rule 17.If the party against whom judgment by default issought has appeared in the action, the party (or, ifappearing by representative, the party' srepresentative) shall be served with written notice of



the application for judgment at least 3 days prior tothe hearing on such application. If, in order to enablethe court to enter judgment or to carry it into effect,it is necessary to take an account or to determine theamount of damages or to establish the truth of anyaverment by evidence or to make an investigation ofany other matter, the court may conduct suchhearings or order such references as it deemsnecessary and proper and shall accord a right of trialby jury to the parties when and as required by anystatute.

(c) Setting aside default. For good cause shownthe court may set aside an entry of default and, if ajudgment by default has been entered, may likewiseset it aside in accordance with Rule 60(b).

(d) Plaintiffs, counterclaimants, cross-claimants. The provisions of this rule apply whetherthe party entitled to the judgment by default is aplaintiff, a third-party plaintiff, or a party who haspleaded a cross-claim or counterclaim. In all cases ajudgment by default is subject to the limitations ofRule 54(c).

(e) Judgment against the state, etc. Nojudgment by default shall be entered against the Stateor a county, or an officer or agency of the State or acounty, unless the claimant establishes a claim orright to relief by evidence satisfactory to the court.


Rule 56. SUMMARY JUDGMENT.(a) For claimant. A party seeking to recover

upon a claim, counterclaim, or cross-claim or toobtain a declaratory judgment may move with orwithout supporting affidavits for a summaryjudgment in the party's favor upon all or any partthereof. A party seeking recovery under this rule mayseek relief at any time after the expiration of 20 daysfrom the commencement of the action or after serviceof a motion for summary judgment by the adverseparty, provided, however, that a motion seeking reliefunder this rule shall be served and filed no less than50 days before the date of the trial unless grantedpermission by the court and for good cause shown.

(b) For defending party. A party against whoma claim, counterclaim, or cross-claim is asserted or adeclaratory judgment is sought may move with orwithout supporting affidavits for a summaryjudgment in the party's favor as to all or any part

thereof, provided, however, that a motion seekingrelief under this rule shall be filed and served no lessthan 50 days before the date of the trial unlessgranted permission by the court and for good causeshown.

(c) Motion and proceedings thereon. Themotion shall be filed and served not less than 18 daysbefore the date set for the hearing. The adverse partymay file and serve opposing memorandum and/oraffidavits not less than 8 days before the date set forthe hearing. The moving party may file and serve areply or affidavit not less than 3 days before the dateset for the hearing. The judgment sought shall berendered forthwith if the pleadings, depositions,answers to interrogatories, and admissions on file,together with the affidavits, if any, show that there isno genuine issue as to any material fact and that themoving party is entitled to a judgment as a matter oflaw. A summary judgment, interlocutory incharacter, may be rendered on the issue of liabilityalone although there is a genuine issue as to theamount of damages.

(d) Case not fully adjudicated on motion. If onmotion under this rule judgment is not rendered uponthe whole case or for all the relief asked and a trial isnecessary, the court at the hearing of the motion, byexamining the pleadings and the evidence before itand by interrogating counsel, shall if practicableascertain what material facts exist without substantialcontroversy and what material facts are actually andin good faith controverted. It shall thereupon makean order specifying the facts that appear withoutsubstantial controversy, including the extent to whichthe amount of damages or other relief is not incontroversy, and directing such further proceedingsin the action as are just. Upon the trial of the actionthe facts so specified shall be deemed established,and the trial shall be conducted accordingly.

(e) Form of affidavits; further testimony;defense required. Supporting and opposingaffidavits shall be made on personal knowledge, shallset forth such facts as would be admissible inevidence, and shall show affirmatively that theaffiant is competent to testify to the matters statedtherein. Sworn or certified copies of all papers orparts thereof referred to in an affidavit shall beattached thereto or served therewith. The court maypermit affidavits to be supplemented or opposed bydepositions, answers to interrogatories, or further



affidavits. When a motion for summary judgment ismade and supported as provided in this rule, anadverse party may not rest upon the mere allegationsor denials of the adverse party's pleading, but theadverse party's response, by affidavits or asotherwise provided in this rule, must set forthspecific facts showing that there is a genuine issuefor trial. If the adverse party does not so respond,summary judgment, if appropriate, shall be enteredagainst the adverse party.

(f) When affidavits are unavailable. Should itappear from the affidavits of a party opposing themotion that the party cannot for reasons statedpresent by affidavit facts essential to justify theparty's opposition, the court may refuse theapplication for judgment or may order a continuanceto permit affidavits to be obtained or depositions tobe taken or discovery to be had or may make suchother order as is just.

(g) Affidavits made in bad faith. Should itappear to the satisfaction of the court at any time thatany of the affidavits presented pursuant to this ruleare presented in bad faith or solely for the purpose ofdelay, the court shall forthwith order the partyemploying them to pay to the other party the amountof the reasonable expenses which the filing of theaffidavits caused the other party to incur, includingreasonable attorney's fees, and any offending party orattorney may be adjudged guilty of contempt.

(h) Form of order. Whenever the court on amotion for summary judgment, disposes of one ormore but fewer than all claims, involving one ormore parties, the order entered must specifically setforth the claim or claims disposed of, and withrespect to each such claim, the party or parties inwhose favor the disposition is made and the party orparties against whom the disposition is made.

(Amended May 15, 1972, effective July 1, 1972;further amended July 26, 1990, effective September1, 1990; further amended September 11, 1996,effective January 1, 1997; further amended May 15,1997, effective June 2, 1997; further amendedDecember 7, 1999, effective January 1, 2000.)

Rule 57. DECLARATORY JUDGMENTS.The procedure for obtaining a declaratory

judgment pursuant to statute shall be in accordancewith these rules, and the right to trial by jury may bedemanded under the circumstances and in the manner

provided in Rules 38 and 39. The existence ofanother adequate remedy does not preclude ajudgment for declaratory relief in cases where it isappropriate, except that declaratory relief may not beobtained in any controversy with respect to taxes.The court may order a speedy hearing of an actionfor a declaratory judgment and may advance it on thecalendar.


Rule 58. ENTRY OF JUDGMENT.Unless the court otherwise directs and subject to

the provisions of Rule 54(b), judgment upon theverdict of a jury shall be entered forthwith by theclerk; but the court shall direct the appropriatejudgment to be entered upon a special verdict orupon a general verdict accompanied by answers tointerrogatories returned by a jury pursuant to Rule49. When the court directs that a party recover onlymoney or costs or that all relief be denied, the clerkshall enter judgment forthwith upon receipt by himof the direction; but when the court directs entry ofjudgment for other relief, the judge shall promptlysettle or approve the form of the judgment and directthat it be entered by the clerk. The filing of thejudgment in the office of the clerk constitutes theentry of the judgment; and the judgment is noteffective before such entry. The entry of thejudgment shall not be delayed for the taxing of costs.Every judgment shall be set forth on a separatedocument.

(Amended July 26, 1990, effective September 1,1990.)

Rule 59. NEW TRIALS; AMENDMENT OFJUDGMENTS.

(a) Grounds. A new trial may be granted to allor any of the parties and on all or part of the issues(1) in an action in which there has been a trial byjury, for any of the reasons for which new trials haveheretofore been granted in actions at law in thecourts of the State; and (2) in an action tried withouta jury, for any of the reasons for which rehearingshave heretofore been granted in suits in equity in thecourts of the State. On a motion for a new trial in anaction tried without a jury, the court may open thejudgment if one has been entered, take additionaltestimony, amend findings of fact and conclusions of



law or make new findings and conclusions, anddirect the entry of a new judgment.

(b) Time for motion. A motion for a new trialshall be filed no later than 10 days after entry of thejudgment.

(c) Time for serving affidavits. When a motionfor new trial is based on affidavits, they shall be filedwith the motion. The opposing party has 10 daysafter service to file opposing affidavits, but thatperiod may be extended for up to 20 days, either bythe court for good cause or by the parties' writtenstipulation. The court may permit reply affidavits.

(d) On court's initiative; notice; specifyinggrounds. No later than 10 days after entry ofjudgment the court, on its own, may order a new trialfor any reason that would justify granting one on aparty's motion. After giving the parties notice and anopportunity to be heard, the court may grant a timelymotion for a new trial, for a reason not stated in themotion. When granting a new trial on its owninitiative or for a reason not stated in a motion, thecourt shall specify the grounds in its order.

(e) Motion to alter or amend judgment. Anymotion to alter or amend a judgment shall be filed nolater than 10 days after entry of the judgment.


Rule 60. RELIEF FROM JUDGMENT ORORDER.

(a) Clerical mistakes. Clerical mistakes injudgments, orders or other parts of the record anderrors therein arising from oversight or omission maybe corrected by the court at any time of its owninitiative or on the motion of any party and after suchnotice, if any, as the court orders. During thependency of an appeal, such mistakes may be socorrected before the appeal is docketed, andthereafter while the appeal is pending may be socorrected with leave of the appellate court.

(b) Mistakes; inadvertence; excusable neglect;newly discovered evidence; fraud, etc. On motionand upon such terms as are just, the court may relievea party or a party's legal representative from a finaljudgment, order, or proceeding for the followingreasons: (1) mistake, inadvertence, surprise, orexcusable neglect; (2) newly discovered evidencewhich by due diligence could not have been

discovered in time to move for a new trial under Rule59(b); (3) fraud (whether heretofore denominatedintrinsic or extrinsic), misrepresentation, or othermisconduct of an adverse party; (4) the judgment isvoid; (5) the judgment has been satisfied, released, ordischarged, or a prior judgment upon which it isbased has been reversed or otherwise vacated, or it isno longer equitable that the judgment should haveprospective application; or (6) any other reasonjustifying relief from the operation of the judgment.The motion shall be made within a reasonable time,and for reasons (1), (2), and (3) not more than oneyear after the judgment, order, or proceeding wasentered or taken. A motion under this subdivision (b)does not affect the finality of a judgment or suspendits operation. This rule does not limit the power of acourt to entertain an independent action to relieve aparty from a judgment, order, or proceeding, or to setaside a judgment for fraud upon the court. Writs ofcoram nobis, coram vobis, audita querela, and bills ofreview and bills in the nature of a bill of review, areabolished, and the procedure for obtaining any relieffrom a judgment shall be by motion as prescribed inthese rules or by an independent action.

(Amended December 7, 1999, effective January1, 2000; further amended May 30, 2006, effectiveJuly 1, 2006.)



Rule 61. HARMLESS ERROR.No error in either the admission or the exclusion

of evidence and no error or defect in any ruling ororder or in anything done or omitted by the court orby any of the parties is ground for granting a newtrial or for setting aside a verdict or for vacating,modifying, or otherwise disturbing a judgment ororder, unless refusal to take such action appears tothe court inconsistent with substantial justice. Thecourt at every stage of the proceeding must disregardany error or defect in the proceeding which does notaffect the substantial rights of the parties.

Rule 62. STAY OF PROCEEDINGS TOENFORCE A JUDGMENT.

(a) Automatic stay; exceptions - Injunctions,receiverships, and accountings. Except as statedherein, no execution shall issue upon a judgment norshall proceedings be taken for its enforcement untilthe expiration of 10 days after its entry. Unlessotherwise ordered by the court, an interlocutory orfinal judgment in an action for an injunction or in areceivership action, or a judgment or order directingan accounting shall not be stayed during the periodafter its entry and until an appeal is taken or duringthe pendency of an appeal. The provisions ofsubdivision; (c) of this rule govern the suspending,modifying, restoring, or granting of an injunctionduring the pendency of an appeal.

(b) Stay on motion for new trial or forjudgment. In its discretion and on such conditionsfor the security of the adverse party as are proper, thecourt may stay the execution of or any proceedings toenforce a judgment pending the disposition of amotion for a new trial or to alter or amend ajudgment made pursuant to Rule 59, or of a motionfor relief from a judgment or order made pursuant toRule 60, or of a motion for judgment in accordancewith a motion for a directed verdict made pursuant toRule 50, or of a motion for amendment to thefindings or for additional findings made pursuant toRule 52(b), or when justice so requires in other casesuntil such time as the court may fix.

(c) Injunction pending appeal. When an appealis taken from an interlocutory or final judgmentgranting, dissolving, or denying an injunction, thecourt in its discretion may suspend, modify, restore,or grant an injunction during the pendency of theappeal upon such terms as to bond or otherwise as it

considers proper for the security of the rights of theadverse party.

(d) Stay upon appeal. When an appeal is takenthe appellant by giving a supersedeas bond mayobtain a stay subject to the exceptions contained insubdivision (a) of this rule. The bond may be givenat or after the time of filing the notice of appeal or ofprocuring the order allowing the appeal, as the casemay be. The stay is effective when the supersedeasbond is approved by the court.

(e) Stay in favor of the state, etc. When anappeal is taken by or at the direction of the State ora county, or by an officer or agency of the State or acounty, and the operation or enforcement of thejudgment is stayed, no bond, obligation, or othersecurity shall be required from the appellant.

(f) Reserved. (g) Power of supreme court and intermediate

court of appeals not limited. The provisions in thisrule do not limit any power of the supreme court orof the intermediate court of appeals or of a justice orjudge thereof to stay proceedings during thependency of an appeal or to suspend, modify, restore,or grant an injunction during the pendency of anappeal or to make any order appropriate to preservethe status quo or the effectiveness of the judgmentsubsequently to be entered.

(h) Stay of judgment as to multiple claims ormultiple parties. When a court has ordered a finaljudgment under the conditions stated in Rule 54(b),the court may stay enforcement of that judgmentuntil the entering of a subsequent judgment orjudgments and may prescribe such conditions as arenecessary to secure the benefit thereof to the party inwhose favor the judgment is entered.

(Amended April 7, 1980, effective April 7, 1980.)

Rule 63. INABILITY OF A JUDGE TOPROCEED.

If a trial or hearing has been commenced and thejudge is unable to proceed, any other judge mayproceed with it upon certifying familiarity with therecord and determining that the proceedings in thecase may be completed without prejudice to theparties. In a hearing or trial without a jury, thesuccessor judge shall at the request of a party recallany witness whose testimony is material and disputedand who is available to testify again without undueburden. The successor judge may also recall any



other witness.(Amended May 15, 1972, effective July 1, 1972;

further amended December 7, 1999, effectiveJanuary 1, 2000.)

VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS

Rule 64. SEIZURE OF PERSON ORPROPERTY.

At the commencement of and during the courseof an action, all remedies providing for seizure ofperson or property for the purpose of securingsatisfaction of the judgment ultimately to be enteredin the action are available under the circumstancesand in the manner provided by the law of the State.The remedies thus available include arrest,attachment, garnishment, replevin, sequestration, andother corresponding or equivalent remedies, howeverdesignated and regardless of whether the remedy isancillary to an action or must be obtained by anindependent action.

Rule 65. INJUNCTIONS.(a) Preliminary injunction. (1) NOTICE. No preliminary injunction shall be

issued without notice to the adverse party.(2) CONSOL IDATIO N OF HEARING WITH TRIAL

ON MERITS. Before or after the commencement of thehearing of an application for a preliminaryinjunction, the court may order the trial of the actionon the merits to be advanced and consolidated withthe hearing of the application. Even when thisconsolidation is not ordered, any evidence receivedupon an application for a preliminary injunctionwhich would be admissible upon the trial on themerits becomes part of the record on the trial andneed not be repeated upon the trial. This subdivision(a) (2) shall be so construed and applied as to save tothe parties any rights they may have to trial by jury.

(b) Temporary restraining order; notice;hearing; duration. A temporary restraining ordermay be granted without written or oral notice to theadverse party or that party's attorney only if (1) itclearly appears from specific facts shown by affidavitor by the verified complaint that immediate andirreparable injury, loss, or damage will result to theapplicant before the adverse party or that party's

attorney can be heard in opposition, and (2) theapplicant's attorney certifies to the court in writingthe efforts, if any, which have been made to give thenotice and the reasons supporting the claim thatnotice should not be required. Every temporaryrestraining order granted without notice shall beindorsed with the date and hour of issuance; shall befiled forthwith in the clerk's office and entered ofrecord; shall define the injury and state why it isirreparable and why the order was granted withoutnotice; and shall expire by its terms within such timeafter entry, not to exceed 10 days, as the court fixes,unless within the time so fixed the order, for goodcause shown, is extended for a like period or unlessthe party against whom the order is directed consentsthat it may be extended for a longer period. Thereasons for the extension shall be entered of record.In case a temporary restraining order is grantedwithout notice, the motion for a preliminaryinjunction shall be set down for hearing at theearliest possible time and takes precedence of allmatters except older matters of the same character;and when the motion comes on for hearing the partywho obtained a temporary restraining order shallproceed with the application for a preliminaryinjunction and, if that party does not do so, the courtshall dissolve the temporary restraining order. On 2days' notice to the party who obtained the temporaryrestraining order without notice or on such shorternotice to that party as the court may prescribe, theadverse party may appear and move its dissolution ormodification and in that event the court shall proceedto hear and determine such motion as expeditiouslyas the ends of justice require.

(c) Security. In all cases, the court, on grantinga temporary restraining order or a preliminaryinjunction or at any time thereafter, may requiresecurity or impose such other equitable terms as itdeems proper. No such security shall be required ofthe State or a county, or an officer or agency of theState or a county.

The provisions of Rule 65.1 apply to a suretyupon a bond or undertaking under this rule.

(d) Form and scope of injunction orrestraining order. Every order granting aninjunction and every restraining order shall set forththe reasons for its issuance; shall be specific interms; shall describe in reasonable detail, and not byreference to the complaint or other document, the act



or acts sought to be restrained; and is binding onlyupon the parties to the action, their officers, agents,servants, employees, and attorneys, and upon thosepersons in active concert or participation with themwho receive actual notice of the order by personalservice or otherwise.

(e) Civil defense and emergency act cases.This rule shall not modify section 128-29 of theHawai#i Revised Statutes.


Rule 65.1. SECURITY: PROCEEDINGSAGAINST SURETIES.

Whenever these rules require or permit thegiving of security by a party, and security is given inthe form of a bond or stipulation or other undertakingwith one or more sureties, each surety submits to thejurisdiction of the court and irrevocably appoints theclerk of the court as the surety's agent upon whomany papers affecting the surety's liability on the bondor undertaking may be served. The surety's liabilitymay be enforced on motion without the necessity ofan independent action. The motion and such noticeof the motion as the court prescribes may be servedon the clerk of the court, who shall forthwith mailcopies to the sureties if their addresses are known.

(Added May 15, 1972, effective July 1, 1972;amended December 7, 1999, effective January 1,2000.)

Rule 66. RECEIVERS APPOINTED BYCOURTS.

An action wherein a receiver has been appointedshall not be dismissed except by order of the court.The practice in the administration of estates byreceivers or by other similar officers appointed bythe court shall be in accordance with the practiceheretofore followed. In all other respects the actionin which the appointment of a receiver is sought orwhich is brought by or against a receiver is governedby these rules.

Rule 67. DEPOSIT IN COURT.In an action in which any part of the relief sought

is a judgment for a sum of money or the dispositionof any other thing capable of delivery, a party, uponnotice to every other party, and by leave of court,

may deposit with the court all or any part of suchsum or thing. Money paid into court under this ruleshall be deposited and withdrawn in accordance withorders of the court.

Rule 68. OFFER OF SETTLEMENT ORJUDGMENT.

At any time more than 10 days before the trialbegins, any party may serve upon any adverse partyan offer of settlement or an offer to allow judgmentto be taken against either party for the money orproperty or to the effect specified in the offer, withcosts then accrued. If within 10 days after the serviceof the offer the adverse party serves written noticethat the offer is accepted, either party may then filethe offer and notice of acceptance together withproof of service thereof and thereupon the clerkshall, in accordance with the agreement, enter anorder of dismissal or a judgment. An offer notaccepted shall be deemed withdrawn and evidencethereof is not admissible except in a proceeding todetermine costs. If the judgment finally obtained bythe offeree is not more favorable than the offer, theofferee must pay the costs incurred after the makingof the offer. The fact that an offer is made but notaccepted does not preclude a subsequent offer. Whenthe liability of one party to another has beendetermined by verdict or order or judgment, but theamount or extent of the liability remains to bedetermined by further proceedings, either party maymake an offer of judgment, which shall have thesame effect as an offer made before trial if it isserved within a reasonable time not less than 10 daysprior to the commencement of hearings to determinethe amount or extent of liability.




Rule 69. EXECUTION.Process to enforce a judgment for the payment of

money shall be a writ of execution, unless the courtdirects otherwise. The procedure on execution, inproceedings supplementary to and in aid of ajudgment, and in proceedings on and in aid ofexecution shall be in the manner provided by the lawof the State. In aid of the judgment or execution, thejudgment creditor or his successor in interest whenthat interest appears of record, may obtain discoveryfrom any person, including the judgment debtor, inthe manner provided in these rules for takingdepositions.


Rule 70. JUDGMENT FOR SPECIFICACTS; VESTING TITLE.

If a judgment directs a party to execute aconveyance of land or to deliver deeds or otherdocuments or to perform any other specific act andthe party fails to comply within the time specified,the court may direct the act to be done at the cost ofthe disobedient party by some other person appointedby the court and the act when so done has like effectas if done by the party. On application of the partyentitled to performance, the clerk shall issue a writ ofattachment or sequestration against the property ofthe disobedient party to compel obedience to thejudgment. The court may also in proper casesadjudge the party in contempt. If real or personalproperty is within the State, the court in lieu ofdirecting a conveyance thereof may enter a judgmentdivesting the title of any party and vesting it in othersand such judgment has the effect of a conveyanceexecuted in due form of law. When any order orjudgment is for the delivery of possession, the partyin whose favor it is entered is entitled to a writ ofexecution or assistance upon application to the clerk.

Rule 71. PROCESS IN BEHALF OF ANDA G A I N S T P E R S O N S N O TPARTIES.

When an order is made in favor of a person whois not a party to the action, that person may enforceobedience to the order by the same process as if aparty; and, when obedience to an order may belawfully enforced against a person who is not a party,that person is liable to the same process for enforcingobedience to the order as if a party.


IX. APPEALS

Rule 72. APPEAL TO A CIRCUIT COURT.(a) How taken. Where a right of

redetermination or review in a circuit court isallowed by statute, any person adversely affected bythe decision, order or action of a governmentalofficial or body other than a court, may appeal fromsuch decision, order or action by filing a notice ofappeal in the circuit court having jurisdiction of thematter. As used in this rule, the term "appellant"means any person or persons filing a notice ofappeal, and "appellee" means every governmentalbody or official (other than a court) whose decision,order or action is appealed from, and every otherparty to the proceedings.

(b) Time. The notice of appeal shall be filed inthe circuit court within 30 days after the persondesiring to appeal is notified of the rendering or entryof the decision or order, or of the action taken, in themanner provided by statute.

(c) Service. Promptly after filing the notice ofappeal, the appellant shall serve a certified copythereof upon each appellee.

(d) Record on appeal. (1) DESIGNATION. The appellant shall, within

the time provided for filing the notice of appeal orwithin such further time, not to exceed 30 days, asmay be allowed by the court for good cause shown,prepare and present to the clerk of the circuit court adesignation, which shall specify the papers,transcripts, minutes and exhibits which the appellantdesires filed in the circuit court in connection withthe appeal. The clerk, in the name and under the sealof the circuit court, shall endorse on the designationan order, directed to the official or body whosedecision, order or action is appealed from,commanding the latter to certify and transmit suchpapers, transcripts, minutes and exhibits to the circuitcourt within 20 days of the date of the order orwithin such further time as may be allowed by thecourt. The clerk shall issue certified copies of suchdesignation and order to the appellant for serviceupon the official or body whose decision, order oraction is appealed from and for service upon any



other appellee. The appellant shall serve certifiedcopies of the designation and order and shall makedue return of service thereof to the clerk of the circuitcourt. The circuit court may compel obedience to theorder by any appropriate process.

(2) COUNTER DESIGNATION. Any appellee may,within 10 days after service of the designation andstatement of the case, prepare and present to the clerkof the circuit court a counter designation, which shallspecify additional papers, transcripts, minutes andexhibits which the appellee desires to be filed in thecircuit court. The clerk shall endorse thereon anorder, as in the case of a designation, and shall issuethe order and counter designation to the appellee forservice and return as provided in Rule 72(d) (1) inthe case of a designation and order. The circuit courtmay, compel obedience to the order by anyappropriate process. When the appellee desiring suchadditional papers, transcripts, minutes and exhibitshas official custody of the same, it shall be sufficientthat the appellee file the same and identify the samein an accompanying certificate. A copy of suchcertificate and of any counter designation shall beserved forthwith upon the appellant.

(e) Statement of case. The appellant shall file inthe circuit court concurrently with the filing ofappellant's designation, a short and plain statement ofthe case and a prayer for relief. Certified copies ofsuch statement shall be served forthwith upon everyappellee. The statement shall be treated, as near asmay be, as an original complaint and the provision ofthese rules respecting motions and answers inresponse thereto shall apply.

(f) Reserved. (g) Trial by jury. Where by law an appeal may

be tried before a jury, the case shall be tried withoutjury unless any appellant or appellee shall havedemanded trial by jury in the manner and within thetime provided in Rule 38.

(h) Costs. No appeal shall be heard, and theappeal shall be dismissed, unless the appellant shallpay all costs, if any, and furnish every bond or othersecurity, if any, required by law.

(i) Stay. The filing of a notice of appeal shallnot operate as a stay of the decision, order or actionappealed from, unless otherwise provided by statuteor unless ordered, for good cause shown, by thecircuit court.

(j) Reserved.

(k) Judgment. Upon determination of theappeal, the court having jurisdiction shall enterjudgment. Such judgment shall be reviewable, orfinal, as may be provided by law. Promptly after finaldetermination of the appeal in the circuit court or inthe appellate court, the clerk of the court finallydetermining the case shall notify the governmentalofficial or body concerned, of the disposition of theappeal.

(Amended May 15, 1972, effective July 1, 1972;further amended and effective May 8, 1996; furtheramended May 30, 2006, effective July 1, 2006.)

Rule 73. to 76. DELETED.

X. CIRCUIT COURTS AND CLERKS

Rule 77. CIRCUIT COURTS AND CLERKS.(a) Circuit courts always open. The circuit

courts shall be deemed always open for the purposeof filing any pleading or other proper paper, ofissuing and returning mesne and final process, and ofmaking and directing all interlocutory motions,orders, and rules.

(b) Trials and hearings; orders in chambers.All trials upon the merits shall be conducted in opencourt and so far as convenient in a regular courtroom. All other acts or proceedings may be done orconducted by a judge in chambers, without theattendance of the clerk or other court officials and atany place either within or without the circuit; but nohearing, other than one ex parte, shall be conductedoutside the circuit without the consent of all partiesaffected thereby.

(c) Clerk's office and orders by clerk. Theclerk's office with the clerk or a deputy in attendanceshall be open during business hours on all daysexcept Saturdays, Sundays and legal holidays. Allmotions and applications in the clerk's office forissuing mesne process, for issuing final process toenforce and execute judgments, for entering defaultsor judgments by default, and for other proceedingswhich do not require allowance or order of the courtare grantable of course by the clerk; but the clerk'saction may be suspended or altered or rescinded bythe court upon cause shown.



(d) Notice of orders or judgments. Immediatelyupon entry of a judgment, or an order for whichnotice of entry is required by these rules, the clerkshall serve a notice of the entry by mail in the mannerprovided for in Rule 5 upon each party who is not indefault for failure to appear, and shall make a note inthe docket of the mailing. Such mailing is sufficientnotice for all purposes for which notice of the entryof a judgment or order is required by these rules. Inaddition, immediately upon entry, the partypresenting the judgment or order shall serve a copythereof in the manner provided in Rule 5. Lack ofnotice of the entry by the clerk or failure to makesuch service, does not affect the time to appeal orrelieve or authorize the court to relieve a party forfailure to appeal within the time allowed, except aspermitted in Rule 4(a) of the Hawai#i Rules ofAppellate Procedure. The court may imposeappropriate sanctions against any party for failure togive notice in accordance with this rule.

(e) Reserved. (Amended, May 15, 1972, effective July 1, 1972;

further amended April 23, 1985, effective April 23,1985; further amended November 23, 1994, effectiveDecember 15, 1994; further amended effective July1, 1998; further amended December 7, 1999,effective January 1, 2000; further amended June 15,2005, effective July 1, 2005.)



XI. GENERAL PROVISIONS

Rule 81. APPLICABILITY.(a) To what proceedings not applicable.

Except as expressly otherwise provided in this Rule81 or another rule of court, these rules shall not applyto the following proceedings (pursuant to specificprovisions of the Hawai#i Revised Statutes whencited below) in any circuit court:

(1) Probate proceedings under chapter 560;(2) Guardianship proceedings under chapter 551;(3) Ex parte proceedings with respect to the

accounts of trustees and guardians under chapter 554;(4) Proceedings in the family court;(5) Applications to a circuit court under chapter

658, relating to arbitration, and proceedings thereonprior to judgment;

(6) Habeas corpus proceedings under chapter660;

(7) Proceedings seeking a writ directed to a courtof inferior jurisdiction under section 603-21.7(b);

(8) Proceedings for the forfeiture of bonds undersection 709-51, as the same may be renumbered;

(9) Proceedings under section 416-81 relating tothe calling of a meeting of a corporation.

(b) Other proceedings. These rules shall applyto the following proceedings except insofar as and tothe extent that they are inconsistent with specificstatutes of the State or rules of court relating to suchproceedings:

(1) Proceedings in the land court under chapter501;

(2) Eminent domain proceedings;(3) Actions for partition or to quiet title;(4) Quo warranto proceedings;(5) Escheat proceedings under chapter 665;(6) Proceedings for the forfeiture of property for

violation of a statute;(7) Proceedings under section 325-79 to 325-84

relating to isolation of tubercular persons;proceedings under chapter 333 or chapter 334relating to commitment, admission, transfer, release,or discharge of any person who is or may be mentallyretarded, mentally defective, mentally ill, habituatedto the excessive use of drugs or alcohol, orintoxicated; and proceedings under any statute for thecommitment, release, or discharge of a person who is

or may be not responsible under the criminal laws, orunfit to proceed thereunder, on account of a disease,disorder, or defect;

(8) Actions for the collection of taxes;(9) Proceedings for enforcement of an order,

subpoena, or other power of an administrativeagency;

(10) Proceedings concerning voter registration orelections;

(11) Proceedings for the impeachment of acounty officer;

(12) Proceedings under: section 92-6, relating topublic records; chapter 172, relating to foreclosure ofliens for commutation and for expenses ofdetermination of boundaries; chapters 89 and 380,relating to collective bargaining and labor disputes;sections 383-34(d), 383-35, 39279(d), and 392-80,with respect to reconsideration of a determinationupon a claim for unemployment benefits ortemporary disability benefits; sections 403-192 and406-51 to 52, relating to banks and trust companies;sections 467-16 to 467-25, relating to collection of ajudgment from the real estate recovery fund; section480-22(a), relating to consent judgments underchapter 480; sections 515-10(e) and 515-14(c),relating to discriminatory practices; part II of chapter664, relating to fences; and part III of chapter 664,relating to rights of private way and water rights.

(c) Jury trial in probate proceedings. Theserules shall apply to any jury trial in probateproceedings under chapter 560. The demand for jurytrial shall be made by motion within the time allowedby the statute.

(d) Jury trial in land court proceedings. Theserules shall apply to any jury trial in a circuit courtupon appeal from a decision of the land court underchapter 501, subject to the provisions of the thirdparagraph of section 501-61 with respect to theframing of issues and evidence and related matters inconnection with such appeals.

(e) Other appeals to circuit court. These rulesshall apply to any proceedings in a circuit courtpursuant to appeal to the circuit court from agovernmental official or body (other than a court),except as otherwise provided in Rule 72.

(f) Appeals. Rule 4(a) of the Hawai#i Rules ofAppellate Procedure, shall apply to appeals (1) froma circuit court in proceedings listed in subdivision (a)



of this Rule 81, other than appeals from a familycourt, and (2) from the land court.

(g) Depositions and discovery. Chapter V ofthese rules, relating to depositions and discovery,shall apply to proceedings listed in subdivision (a) ofthis Rule 81 and proceedings in the land court, exceptthat in any such proceeding: (1) the court may byorder direct that said Chapter V shall not beapplicable to the proceeding if the court for goodcause finds that the application thereof would not befeasible or would work an injustice; and (2) if theproceeding be ex parte any deposition therein uponoral examination or upon written interrogatories shallbe pursuant to motion and order of court, rather thanpursuant to notice as set forth in subdivision (a) ofRule 30 or subdivision (a) of Rule 31, and in anysuch case the order of court shall, for all purposesrelating to said Chapter V, take the place of saidnotice.

(h) Order of court. In any proceeding in theland court or listed in subdivision (a) of Rule 81 thecourt may by order direct that any one or more ofthese rules, not otherwise applicable to saidproceeding pursuant to this Rule 81, shall beapplicable to said proceeding.

(i) Applicability in general. Except asotherwise provided in Rule 72 or in this Rule 81,these rules shall apply to all actions and proceedingsof a civil nature in any circuit court and to all appealsto the appellate courts in all actions and proceedingsof a civil nature in any circuit court; and for thatpurpose every action or proceeding of a civil naturein the circuit court shall be a "civil action" within themeaning of Rule 2.

(j) References to incompetent person. Underany rule in which reference is made to anincompetent person the term "incompetent person"includes any person, other than an infant, for whoma guardian may be appointed pursuant to statute.

(Amended May 15, 1972, effective July 1, 1972;further amended June 29, 1973, effective July 2,1973; further amended January 24, 1977, effectiveFebruary 15, 1977; further amended April 7, 1980,effective April 7, 1980; further amended April 23,1985, effective April 23, 1985; further amended July26, 1990, effective September 1, 1990; furtheramended May 30, 2006, effective July 1, 2006.)

Rule 81.1. MANDAMUS.The writ of mandamus is abolished in the circuit

courts, except when directed to a court of inferiorjurisdiction. Relief heretofore available bymandamus may be obtained by appropriate action orby appropriate motion under the practice prescribedin these rules. In any action in the nature ofmandamus the court may shorten the time prescribedby these rules for pleading or doing any other act.


Rule 82. JURISDICTION AND VENUEUNAFFECTED.

These rules shall not be construed to extend orlimit the jurisdiction of the circuit courts or the venueof actions therein.

Rule 83. RULES BY CIRCUIT COURTS.Each circuit court may recommend, from time to

time, rules and amendments of rules governing itspractice not inconsistent with these rules. Copies ofrules and amendments, when promulgated by thesupreme court shall be made available to eachattorney licensed to practice law in the State. In allcases not provided for by rule, the circuit courts mayregulate their practice in any manner not inconsistentwith these rules.


Rule 84. FORMS.The forms contained in the Appendix of Forms

are sufficient under the rules and are intended toindicate the simplicity and brevity of statementwhich the rules contemplate.

Rule 85. TITLE.These rules may be known and cited as the

Hawai#i Rules of Civil Procedure.

Rule 86. RESERVED.(Deleted April 7, 1980, effective April 7, 1980.)

HAWAI#I RULES OF CIVIL PROCEDURE Appendix of Forms


APPENDIX OF FORMS(See Rule 84)

Introductory Statement

1. The following forms are sufficient under these rules. They are limited in number. Noattempt is made to furnish a manual of forms. Each form assumes the action to be brought in theFirst Circuit. The caption should state the circuit in which the action is brought.

2. Except where otherwise indicated each pleading, motion, and other paper should have acaption similar to that of the summons, with the designation of the particular paper substituted forthe word "Summons." In the caption of the summons and in the caption of the complaint all partiesmust be named but in other pleadings and papers, it is sufficient to state the name of the first partyon either side, with an appropriate indication of other parties. See Rules 4(b), 7(b)(2), and 10(a).

3. Each pleading, motion, and other paper is to be signed in his individual name by at leastone attorney of record (Rule 11). The attorney's name is to be followed by his address.

4. If a party is not represented by an attorney, the signature and address of the party arerequired in place of those of the attorney.

5. Rule 3 of the Rules of the Circuit Courts prescribes additional requirements.

Form 1 HAWAI#I RULES OF CIVIL PROCEDURE


Form 1. Summons.

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAI#I

A.B., Plaintiff,

v.

C.D., Defendant.

))))))

Civil No.____________

SUMMONS

SUMMONS STATE OF HAWAI#I

To the above-named Defendant:

You are hereby summoned and required to serve upon ______________________________,plaintiff's attorney, whose address is ____________________________________________, ananswer to the complaint which is herewith served upon you, within 20 days after service of thissummons upon you, exclusive of the day of service. If you fail to do so, judgment by default willbe taken against you for the relief demanded in the complaint.

Dated: Honolulu, Hawai#i, ________________________

Clerk of Court

(Seal of the Circuit Court)

(This summons is issued pursuant to Rule 4 of the Hawai#i Rules of CivilProcedure).

For provisional and final remedies, including attachment, garnishment, etc., seeChapter VIII of these rules.

Form 2. Reserved.

HAWAI#I RULES OF CIVIL PROCEDURE Form 3


Form 3. Complaint on a Promissory Note.

1. Allegation of residence of parties.

2. Defendant on or about June 1, 1951, executed and delivered to plaintiff a promissory note(in the following words and figures: [here set out the note verbatim]); [a copy of which is herebyannexed as Exhibit A]; [whereby defendant promised to pay to plaintiff or order on June 1, 1952,the sum of ten thousand dollars with interest thereon at the rate of six percent per annum].

3. Defendant owes to plaintiff the amount of said note and interest.

Wherefore plaintiff demands judgment against defendant for the sum of ten thousand dollars,interest, and costs.


Signed:___________________________________ Attorney for PlaintiffAddress: __________________________________

Notes

1. The pleader may use the material in one of the three sets of brackets. His choicewill depend upon whether he desires to plead the document verbatim, or byexhibit, or according to its legal effect.

2. Under the rules free joinder of claims is permitted. See Rules 8(e) and 18.Consequently the claims set forth in each and all of the following forms may bejoined with this complaint or with each other. Ordinarily each claim should bestated in a separate division of the complaint, and the divisions should bedesignated as counts successively numbered. In particular the rules permitalternative and inconsistent pleading. See Form 10.

Form 4. Complaint on an Account.


2. Defendant owes plaintiff ten thousand dollars according to the account hereto annexed asExhibit A.

Wherefore (etc. as in Form 3).



Form 5. Complaint for Goods Sold and Delivered.


2. Defendant owes plaintiff ten thousand dollars for goods sold and delivered by plaintiff todefendant between June 1, 1952 and December 1, 1952.


Note

This form may be used where the action is for an agreed price or for thereasonable value of the goods.

Form 6. Complaint for Money Lent.


2. Defendant owes plaintiff ten thousand dollars for money lent by plaintiff to defendant onJune 1, 1952.


Form 7. Complaint for Money Paid by Mistake.


2. Defendant owes plaintiff ten thousand dollars for money paid by plaintiff to defendant bymistake on June 1, 1952, under the following circumstances: (here state the circumstances withparticularity - See Rule 9(b)).


Form 8. Complaint for Money Had and Received.


2. Defendant owes plaintiff ten thousand dollars for money had and received from one G. H.on June 1, 1952, to be paid by defendant to plaintiff.




Form 9. Complaint for Negligence.


2. On June 1, 1952, in a public highway called King Street in Honolulu, Hawai#i, defendantnegligently drove a motor vehicle against plaintiff who was then crossing said highway.

3. As a result plaintiff was thrown down and had his leg broken and was otherwise injured,was prevented from transacting his business, suffered great pain of body and mind, and incurredexpenses for medical attention and hospitalization in the sum of one thousand dollars.

Wherefore plaintiff demands judgment against defendant in the sum of _______________dollars and costs.

Note

Since contributory negligence is an affirmative defense, the complaint need containno allegation of due care of plaintiff.



Form 10. Complaint for Negligence Where Plaintiff Is Unable to DetermineDefinitely Whether the Person Responsible Is C. D. or E. F. or WhetherBoth Are Responsible and Where His Evidence May Justify a Finding ofWilfulness or of Recklessness or of Negligence.

A. B., Plaintiff,

v.

C. D. and E. F., Defendants.

))))))

COMPLAINT


2. On June 1, 1952, in a public highway called King Street, Honolulu, Hawai#i, defendant C.D. or defendant E. F., or both defendants C. D. and E. F. willfully or recklessly or negligentlydrove or caused to be driven a motor vehicle against plaintiff who was then crossing said highway.

3. As a result plaintiff was thrown down and had his leg broken and was otherwise injured,was prevented from transacting his business, suffered great pain of body and mind, and incurredexpenses for medical attention and hospitalization in the sum of one thousand dollars.

Wherefore plaintiff demands judgment against C. D. or against E. F. or against both in the sumof ______________________________ dollars and costs.

Form 11. Complaint for Conversion.


2. On or about December 1, 1952, defendant converted to his own use ten bonds of the___________ Company (here insert brief identification as by number and issue) of the value of tenthousand dollars, the property of plaintiff.

Wherefore plaintiff demands judgment against defendant in the sum of ten thousand dollars,interest, and costs.



Form 12. Complaint for Specific Performance of Contract to Convey Land.


2. On or about December 1, 1952, plaintiff and defendant entered into an agreement inwriting, a copy of which is hereto annexed as Exhibit A.

3. In accord with the provisions of said agreement plaintiff tendered to defendant the purchaseprice and requested a conveyance of the land, but defendant refused to accept the tender andrefused to make the conveyance.

4. Plaintiff now offers to pay the purchase price.

Wherefore plaintiff demands (1) that defendant be required specifically to perform saidagreement, (2) damages in the sum of one thousand dollars, and (3) that if specific performance isnot granted plaintiff have judgment against defendant in the sum of ________________ dollars.

Note

Here, as in Form 3, plaintiff may set forth the contract verbatim in thecomplaint or plead it, as indicated, by exhibit, or plead it according to its legaleffect. Furthermore, plaintiff may seek legal or equitable relief or both eventhough this was impossible under the system in operation before these rules.



Form 13. Complaint on Claim for Debt and to Set Aside FraudulentConveyance Under Rule 18(b).

A.B., Plaintiff,

v.

C. D. and E.F., Defendants.

))))))

COMPLAINT


2. Defendant C. D. on or about ____________________ executed and delivered to plaintiff apromissory note (in the following words and figures: (here set out the note verbatim)); (a copy ofwhich is hereto annexed as Exhibit A); (whereby defendant C. D. promised to pay to plaintiff ororder on ______________ the sum of five thousand dollars with interest thereon at the rate of__________ percent per annum).

3. Defendant C. D. owes to plaintiff the amount of said note and interest.

4. Defendant C. D. on or about ________________ conveyed all his property, real andpersonal (or specify and describe) to defendant E. F. for the purpose of defrauding plaintiff andhindering and delaying the collection of the indebtedness evidenced by the note above referred to.

Wherefore plaintiff demands:

(1) That plaintiff have judgment against defendant C. D. for _______________________dollars and interest; (2) that the aforesaid conveyance to defendant E. F. be declared void and thejudgment herein be declared a lien on said property; (3) that plaintiff have judgment against thedefendants for costs.

Form 14. Reserved.

Form 15. Reserved.

Form 16. Reserved.

Form 17. Reserved.



Form 18. Complaint for Interpleader and Declaratory Relief.


2. On or about June 1, 1950, plaintiff issued to G. H. a policy of life insurance wherebyplaintiff promised to pay to K. L. as beneficiary the sum of ten thousand dollars upon the death ofG. H. The policy required the payment by G. H. of a stipulated premium on June 1, 1951, andannually thereafter as a condition precedent to its continuance in force.

3. No part of the premium due June 1, 1951, was ever paid and the policy ceased to have anyforce or effect on July 1, 1951.

4. Thereafter, on September 1, 1951, G. H. and K. L. died as the result of an accident, inwhich G. H. and K. L. were involved.

5. Defendant C. D. is the duly appointed and acting executor of the will of G. H.; defendantE. F. is the duly appointed and acting executor of the will of K. L.; defendant X. Y. claims to havebeen duly designated as beneficiary of said policy in place of K. L.

6. Each of defendants, C. D., E. F., and X. Y. is claiming that the above-mentioned policywas in full force and effect at the time of the death of G. H.; each of them is claiming to be theonly person entitled to receive payment of the amount of the policy and has made demand forpayment thereof.

7. By reason of these conflicting claims of the defendants, plaintiff is in great doubt as towhich defendant is entitled to be paid the amount of the policy, if it was in force at the death of G.H.

Wherefore plaintiff demands that the court adjudge:

(1) That none of the defendants is entitled to recover from plaintiff the amount of said policyor any part thereof.

(2) That each of the defendants be restrained from instituting any action against plaintiff forthe recovery of the amount of said policy or any part thereof.

(3) That, if the court shall determine that said policy was in force at the death of G. H., thedefendants be required to interplead and settle between themselves their rights to the money dueunder said policy, and that plaintiff be discharged from all liability in the premises except to theperson whom the court shall adjudge entitled to the amount of said policy.

(4) That plaintiff recover its costs.



Form 19. Motion to Dismiss, Presenting Defenses of Failure to State a Claimor Lack of Service of Process.

The defendant moves the court as follows:

1. To dismiss the action because the complaint fails to state a claim against defendant uponwhich relief can be granted.

2. To dismiss the action or in lieu thereof to quash the return of service of summons on thegrounds (a) that the defendant is a corporation organized under the laws of Delaware and was notand is not subject to service of process within the State of Hawai#i, and (b) that the defendant hasnot been properly served with process in this action, all of which more clearly appears in theaffidavits of M. N. and X. Y. hereto annexed as Exhibit A and Exhibit B respectively.

Signed:__________________________________ Attorney for Defendant Address: _________________________________

Notice of Motion

To: __________________________________________________Attorney for Plaintiff

Please take notice that the undersigned will bring the above motion on for hearing before thepresiding judge of this court in the Judiciary Building, Honolulu, Hawai#i, on the ____ day of__________________________, 1953, at __________________________ o'clock ____ M. or assoon thereafter as counsel can be heard.

Signed:___________________________________ Attorney for Defendant Address:__________________________________

Note

The above motion and notice of motion may be combined and denominatedNotice of Motion. See Rule 7(b).



Form 20. Answer Presenting Defenses Under Rule 12(b).

FIRST DEFENSE

The complaint fails to state a claim against defendant upon which relief can be granted.

SECOND DEFENSE

Defendant admits the allegation contained in paragraphs 1 and 4 of the complaint; alleges thathe is without knowledge or information sufficient to form a belief as to the truth of the allegationscontained in paragraph 2 of the complaint; and denies each and every other allegation contained inthe complaint.

THIRD DEFENSE

The right of action set forth in the complaint did not accrue within six years next before thecommencement of this action.

COUNTERCLAIM

(Here set forth any claim as a counterclaim in the manner in which a claim is pleaded in acomplaint.)

CROSS-CLAIM AGAINST DEFENDANT M. N.

(Here set forth the claim constituting a cross-claim against defendant M. N. in the manner inwhich a claim is pleaded in a complaint.)



Form 21. Answer to Complaint Set Forth in Form 8, With Counterclaimfor Interpleader.

DEFENSE

Defendant admits the allegations stated in paragraph 1 of the complaint; and denies theallegations stated in paragraph 2 to the extent set forth in the counterclaim herein.

COUNTERCLAIM FOR INTERPLEADER

1. Defendant received the sum of ten thousand dollars as a deposit from E. F.

2. Plaintiff has demanded the payment of such deposit to him by virtue of an assignment of itwhich he claims to have received from E. F.

3. E. F. has notified the defendant that he claims such deposit, that the purported assignmentis not valid, and that he holds the defendant responsible for the deposit.

Wherefore defendant demands:

(1) That the court order E. F. to be made a party defendant to respond to the complaint and tothis counterclaim.1

1Rule 13(h) provides for the court ordering parties to a counterclaim, but whoare not parties to the original action, to be brought in as defendants.

(2) That the court order the plaintiff and E. F. to interplead their respective claims.

(3) That the court adjudge whether the plaintiff or E. F. is entitled to the sum of money.

(4) That the court discharge defendant from all liability in the premises except to the person itshall adjudge entitled to the sum of money.

(5) That the court award to the defendant its costs and attorney's fees.

Form 22. Replaced.

Replaced by Forms 22-A and 22-B, May 15, 1972, effective July 1, 1972.

HAWAI#I RULES OF CIVIL PROCEDURE Form 22-A


Form 22-A. Summons and Complaint Against Third-Party Defendant.


STATE OF HAWAI#I

A.B., Plaintiff,

v.

C.D., Defendant and Third-Party Plaintiff,

v.

E.F., Third-Party Defendant.

))))))))))

Civil No. ______________

SUMMONS

SUMMONS

STATE OF HAWAI#I

To the above-named Third-Party Defendant:

You are hereby summoned and required to serve upon __________________________,plaintiff's attorney whose address is _____________________________________________, andupon ______________________________, who is attorney for C. D., defendant and third-partyplaintiff, and whose address is __________________, an answer to the third-party complaintwhich is herewith served upon you within 20 days after the service of this summons upon youexclusive of the day of service. If you fail to do so, judgment by default will be taken against youfor the relief demanded in the third-party complaint. There is also served upon you herewith a copyof the complaint of the plaintiff which you may but are not required to answer.

Dated: Honolulu, Hawai#i, _____________________

(Seal of Circuit Court) Clerk of Court

Form 22-A HAWAI#I RULES OF CIVIL PROCEDURE



STATE OF HAWAI#I

A.B., Plaintiff,

v.

C.D., Defendant and Third-Party Plaintiff,

v.

E.F., Third-Party Defendant.

))))))))))

Civil No. ______________

THIRD PARTY COMPLAINT

THIRD-PARTY COMPLAINT

1. Plaintiff A. B. has filed against Defendant C. D. a complaint, a copy of which is heretoattached as Exhibit A.

2. (Here state the grounds upon which C. D. is entitled to recover from E. F., all or part ofwhat A. B. may recover from C. D., or upon which A. B. is entitled to recover from E. F. and notfrom C. D. The statement should be framed as in an original complaint.)

Wherefore C. D. demands judgment against third-party defendant E.F. for all sums1 that maybe adjudged against defendant C.D. in favor of plaintiff A. B.

1Make appropriate change where C.D. is entitled to only partialrecovery-over against E. F.

Dated: Honolulu, Hawai#i, _____________________

Signed:____________________________________Attorney for C. D., Third-Party Plaintiff

Address:___________________________________


HAWAI#I RULES OF CIVIL PROCEDURE Form 22-B


Form 22-B. Motion to Bring in Third-Party Defendant.

Defendant moves for leave, as third-party plaintiff, to cause to be served upon E. F. asummons and third-party complaint, copies of which are hereto attached as Exhibit X.

Signed:_____________________________________Attorney for Defendant C. D.

Address:____________________________________

Notice of Motion

(Contents the same as in Form 19. The notice should be addressed to all parties to the action.)

Exhibit X

(Contents the same as in Form 22-A.)




Form 23. Motion to Intervene as a Defendant Under Rule 24.


STATE OF HAWAI#I

A.B., Plaintiff,

v.

C.D., Defendant.

E.F., Applicant for Intervention

))))))))

Civil No. ____________________

MOTION TO INTERVENE ASDEFENDANT

MOTION TO INTERVENE AS A DEFENDANT

E. F. moves for leave to intervene as a defendant in this action, in order to assert the defensesset forth in his proposed answer, a copy of which is hereto attached and marked Exhibit A, on theground that he has a prior lien on the property referred to in the complaint and as such has adefense to plaintiff's claim presenting both questions of law and of fact which are common to themain action.

Dated: Honolulu, Hawai#i, _________________________

Signed:__________________________________________Attorney for E. F., Applicant for Intervention

Address:_________________________________________

(Contents the same as in Form 19.)

For other grounds of intervention, either of right or in the discretion of thecourt, see Rules 24(a) and (b). Under Rule 24(c), the motion to intervenemust be served upon all parties as provided in Rule 5.



Exhibit A


STATE OF HAWAI#I

A.B., Plaintiff,

v.

C.D., Defendant.

E.F., Intervener

))))))))

Civil No. ____________________

INTERVENER’S ANSWER

INTERVENER'S ANSWER

FIRST DEFENSE

Intervener admits the allegation stated in paragraphs 1 and 4 of the complaint; denies theallegation in paragraphs 2 and 3.

SECOND DEFENSE

That intervener has a valid and existing first lien upon the property described in the complaintand that no disposition of such property should be made without first providing for the satisfactionof the intervener's lien.

Dated: Honolulu, Hawai#i, ___________________________

Signed:_______________________________Attorney for E. F., Intervener

Address:______________________________



Form 24. Request for Production of Documents, etc., Under Rule 34.

Plaintiff A. B. requests defendant C. D. to respond within __________ days to the followingrequests:

(1) That defendant produce and permit plaintiff to inspect and to copy each of the followingdocuments:

(Here list the documents either individually or by category and describe each of them.)

(Here state the time, place, and manner of making the inspection and performance of anyrelated acts.)

(2) That defendant produce and permit plaintiff to inspect and to copy, test, or sample each ofthe following objects:

(Here list the objects either individually or by category and describe each of them.)


(3) That defendant permit plaintiff to enter (here describe property to be entered) and toinspect and to photograph, test or sample (here describe the portion of the real property and theobjects to be inspected).


Signed:__________________________________Attorney for Plaintiff

Address:_________________________________




Form 25. Request for Admissions Under Rule 36.

Plaintiff A. B. requests defendant C. D. within ________________ days after service of thisrequest to make the following admissions for the purpose of this action only and subject to allpertinent objections to admissibility which may be interposed at the trial:

1. That each of the following documents, exhibited with this request is genuine. (Here list thedocuments and describe each document.)

2. That each of the following statements is true. (Here list the statements.)

Signed:________________________________Attorney for Plaintiff

Address:_______________________________

Form 26. Allegation of Reason for Omitting Party.

When it is necessary, under Rule 19(c), for the pleader to set forth in his pleading the namesof persons who ought to be made parties, but who are not so made, there should be an allegationsuch as the one set out below:

John Doe named in this complaint is not made a party to this action (because he is not subjectto the jurisdiction of this court).

Form 27. Deleted.

Form 28. Reserved.



Form 29. Notice of Appeal From Decision or Order of GovernmentalOfficial or Body to the Circuit Court Under Rule 72(a).


STATE OF HAWAI#I

A.B., Appellant,

v.

(Name of governmental official orbody whose order or decision isappealed from), Appellee.

)))))))))

Civil No. ____________

NOTICE OF APPEAL TO CIRCUIT COURT

NOTICE OF APPEAL TO CIRCUIT COURT

Notice is hereby given that A. B., appellant above-named, pursuant to H.R.S. § ___________,hereby appeals to the Circuit Court of the First Circuit from the (order) (decision) of (here namegovernmental official or body whose order or decision is appealed from) entered on ___________

(Specify grounds of appeal, if required by statute.)


Signed: _________________________________Attorney for A. B., Appellant

Address:________________________________

Note

Use either the material in the first set of brackets or that in the second asthe case requires.



Form 30. Suggestion of Death Upon the Record Under Rule 25(a)(1).

A. B. (describe as a party, or as executor, administrator, or other representative or successor ofC. D., the deceased party) suggests upon the record, pursuant to Rule 25(a)(1), the death of C. D.(describe as party) during the pendency of this action.
