The 2023 Regular Legislative Session’s enactment of HB 196 brings robust changes to Louisiana’s summary judgment procedure, set forth in Louisiana Code of Civil Procedure Article 966. The newest amendment to Article 966 focuses primarily on summary judgment evidence, and these changes demand strict adherence to the newly amended summary judgment procedure.

Expansion of Documents Permissible for Summary Judgment

One of the most noteworthy changes to Article 966 lies in the expansion of documents that can be used to support or oppose a motion for summary judgment. Article 966(A)(4)(a) now states in pertinent part:

(A)(4)(a) The only documents that may be filed or referenced in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, certified copies of public documents or public records, certified copies of insurance policies, authentic acts, private acts duly acknowledged, promissory notes and assignments thereof, written stipulations, and admissions. (Underlined language is added by HB 196.)

These changes enhance the pool of records available for use in summary judgment proceedings, shifting away from previous reliance on affidavit testimony to validate similar evidence.

Reference to Previously Filed Evidence

Additionally, any evidence provided for in Article 966(A)(4)(a) that is already present in the record can be cited to by reference in summary judgment briefing under a newly enacted provision. Article 966(A)(4)(b) provides:

(A)(4)(b) Any document listed in Subsubparagraph (a) of this Subparagraph previously filed into the record of the cause may be specifically referenced and considered in support of or in opposition to a motion for summary judgment by listing with the motion or opposition the document by title and date of filing. The party shall concurrently with the filing of the motion or opposition furnish to the court and the opposing party a copy of the entire document with the pertinent part designated and the filing information. (Underlined language is added by HB 196.)

Failure to adhere to the specifications of Subsubparagraph (A)(4)(b) may now serve as grounds for objecting to the court’s consideration of the referenced document. While this modification doesn’t negate the option to attach full documents, it introduces a streamlined method for citing existing records.

While it is now permissible to cite to documentary evidence present in the record, practitioners must remember that appellate courts still require evidence to be submitted and entered into the summary judgment record—as opposed to simply a reference to those documents in briefing—to be considered when supervisory review of a motion for summary judgment is requested.

Mandatory Electronic Service of Documents

In a nod to the digital age, amendments to Article 966(B)(1), (2), and (3) now mandate electronic service of all motion-related documents in accordance with Louisiana Code of Civil Procedure Article 1313(A(4). As such, electronic service for motions for summary judgment, oppositions, reply memoranda, and any supporting documents is now mandatory.

Trial Courts are Precluded from Considering Untimely Filed Evidence

The newest amendments to Article 966(D)(2) precludes the trial court from considering any documents that are filed untimely in support of, or in opposition to, the motion for summary judgment. Article 966(D)(2) now reads:

(D)(2) The court [may] shall consider only those documents filed or referenced in support of or in opposition to the motion for summary judgment [and shall consider any documents to which no objection is made] but shall not consider any document that is excluded pursuant to a timely filed objection. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing [which documents, if any, it held to be inadmissible or declined to consider] whether the court sustains or overrules the objections raised. (Underlined language is added by HB 196; bold underlined language in brackets is removed by HB 196.)

These changes to Subparagraph (D)(2) now clarify that trial courts essentially lack discretion to consider any document or objection that is untimely filed in summary judgment proceedings, including any evidence supporting summary judgment that is filed in a reply memorandum rather than the motion itself.

New Procedure for Challenging Expert Evidence in Summary Judgment

Another new provision to Article 966 provides for a procedural barrier to summary judgment when objections are made to an expert’s qualifications or methodologies by filing a Daubert motion in accordance with Louisiana Code of Civil Procedure article 1425(F). A timely filed Daubert motion challenging expert evidence in support of or opposition to summary judgment now dictates that the Daubert proceedings be completed prior to the summary judgment hearing, as Article 966(D)(3) provides:

(D)(3) If a timely objection is made to an expert’s qualifications or methodologies in support of or in opposition to a motion for summary judgment, any motion in accordance with Article 1425(F) to determine whether the expert is qualified or the expert’s methodologies are reliable shall be filed, heard, and decided prior to the hearing on the motion for summary judgment. (Underlined language is added by HB 196.)

Legal Holidays Now Count Towards Delays for Reply Memoranda

Lastly, Subparagraph (B)(3) now clarifies that legal holidays are “counted” towards the five-day filing requirement for reply memoranda. Article 966(B)(3) now reads:

(B)(3) Any reply memorandum shall be filed and served in accordance with Article 1313(A)(4) not less than five days inclusive of legal holidays notwithstanding Article 5059(B)(3) prior to the hearing on the motion. No additional documents may be filed with the reply memorandum. (Underlined language is added by HB 196.)

It is important to note that this change merely affects the time calculation and does not require filing and service on a legal holiday, as clarified by the drafters’ comments to the 2023 amendment of Article 996:

(d)  Subparagraph (B)(3) clarifies that legal holidays are included in the calculation of time within which the mover shall file the reply memorandum. Subparagraph (B)(4) continues to apply in this situation. For example, if the hearing on the motion for summary judgment is set on Friday, the fifth day to file the reply memorandum falls on the preceding Sunday. Accordingly, under Subparagraph (B)(4), the mover would have the entirety of the preceding Monday to file the reply memorandum. The court should be aware of this requirement when setting hearings on motions for summary judgment.

Thus, Subparagraph (B)(4) still applies, giving parties the next business day to file if the fifth day deadline falls on a legal holiday.