Rule 43.04: Matters Considered by Court.



When parties supporting or opposing motions before the court present materials not previously filed with the court, such materials shall be submitted as follows:

(1) All or part of any deposition taken pursuant to Rules 30 or 31 shall be accompanied by an original or photocopy of the certification of the officer taking the deposition.

(2) All or part of any interrogatory answers or objections thereto obtained pursuant to Rule 33 and all or part of any response or objection to a Rule 36 request for admission shall be accompanied by the original signature of the responding party or attorney, or a photocopy thereof.

(3) Any document obtained pursuant to a Rule 34 request for production of documents shall be accompanied by a copy of the request for production and either a copy of the response thereto or a certificate of authenticity from the party or attorney presenting the document to the court.

The submitting party shall also include the title page of the foregoing documents showing the complete caption for the action as required by Rule 10.01. The submission shall include all relevant definitions provided in the original document.

In ruling on any motion, the court shall consider only those documents and other materials that have been filed with the court as provided herein or that have been presented to the court in accordance with Rules 43.01 or 43.02, or matters that have been stipulated by the parties. [Added by order filed December 10, 2003; effective July 1, 2004.]

Advisory Commission Comments [1991].

The first section [43.01] is amended to cross-reference the Tennessee Rules of Evidence. The second section [43.02] was formerly numbered 43.05. Original 43.06 on compensating interpreters is moved to Rule 54.04(3). All other sections in the original rule are deleted because inconsistent with or superfluous in light of the Tennessee Rules of Evidence.

Advisory Commission Comments [2002].

The amendment permits testimony of a witness outside the courtroom to be transmitted by contemporaneous audio-visual means to the trier of fact. Note that three conditions must be satisfied: good cause, compelling circumstances, and adequate safeguards.

Advisory Commission Comments [2003].

The new procedure in Rule 43.03 is designed to assist jurors in understanding conflicting expert testimony by providing judges and lawyers with considerable flexibility in the scheduling and mode of that testimony. On rare occasions, it may be helpful if expert testimony on the same subject be given in the same block of time rather than separated by days or weeks and given during each party's proof process. For example, in a tort case where both sides will present expert testimony on causation, jurors may benefit if the plaintiff's causation experts testify, followed immediately by the defendant's causation experts. This procedure may give the jurors a better way of resolving the issue of causation. Because of the tactical, financial, scheduling, and procedural issues raised by this new procedure, it can only be utilized with the consent of the court and all parties.

Advisory Commission Comments [2004].

New Rule 43.04 limits a trial court's consideration on motion rulings, particularly motion for summary judgment rulings, to certain designated materials. The amendment complements existing Rule 56.04.

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