M E M O
TO:Joint Procedure Committee
RE:Rule 43, N.D.R.Civ.P.; Taking of Testimony
Rule 43, Fed.R.Civ.P., was amended, effective December 1, 1996, to allow testimony in open court by means other than oral testimony. For example, if a witness is not able to communicate orally, testimony may be taken through writing, sign language, or other means.
The amendment also allows contemporaneous transmission of testimony from a different location for good cause shown in compelling circumstances. For example, remote transmission might be used when a witness is unable to attend trial for unexpected reasons, such as accident or illness. See Rule 43, Fed.R.Civ.P., Advisory Committee Note.
At the last meeting, the Committee had several concerns about the federal amendment. First, the Committee expressed concern the rule is not clear without referring to the federal advisory committee note. Specifically, the Committee thought the rule was unclear as to whether or when notice is required for testimony by non-oral means or by contemporaneous transmission. The Committee also thought the rule should specifically require the circumstances justifying contemporaneous transmission to be unexpected.
As instructed by the Committee, additional language has been added to the proposal for the Committee's consideration. Language has been added requiring notice as soon as reasonably possible for testimony by non-oral means or contemporaneous transmission. Language has also been added requiring the circumstances justifying contemporaneous transmission to be unexpected.
The proposed explanatory note also contains additional amendments. The note has been amended with a reference to the 1996 Advisory Committee Note, Rule 43, Fed.R.Civ.P. The explanatory note also clarifies inconvenience of a witness is not a ground justifying contemporaneous transmission of testimony from a different location; because, the requirement for "good cause shown in compelling circumstances" is not met.
At the last meeting, the Committee also raised the question as to who would be responsible for any additional expense incurred in presenting testimony by non-oral means or by contemporaneous transmission from a different location. Neither, the federal rule nor its commentary address the issue.
Under North Dakota law, costs are purely a creature of statute, and an allowance for costs cannot be made by the trial court unless authorized by statute. City of Fargo v. Annexation Review Commission, 148 N.W.2d 338, 354 (N.D. 1966). Allowance is made in Section 28-26-06(2), N.D.C.C., for taxation of "[t]he necessary expenses of taking depositions and of procuring evidence necessarily used or obtained for use on the trial." Are disbursements incurred by presenting testimony by non-oral means or by contemporaneous transmission from a different location encompassed by Section 28-26-06(2)?
Should Rule 43 expressly address taxation of disbursements incurred by presenting testimony by non-oral means or by contemporaneous transmission? Costs may be permitted by rule of the Supreme Court under its inherent and statutory authority. Tharaldson v. Unsatisfied Judgment Fund, 225 N.W.2d 39, 43 (N.D. 1974). For instance, Rule 30.1(e), N.D.R.Civ.P., provides "[t]he reasonable expense of recording, editing, and using an audio-visual deposition may be taxed as costs."
Finally, the Committee had concerns about a potential conflict between the proposal and case law. In an involuntary commitment case, In Interest of Gust, 345 N.W.2d 42, 43-45 (N.D. 1984), the Supreme Court interpreted the language "orally in open court," from Rule 43, and held a witness may not testify at trial by telephone rather than by personal appearance. Due process for a commitment hearing requires the respondent have an opportunity to confront and cross-examine witnesses. See In Interest of J.S., 530 N.W.2d 331, 335 (N.D. 1995).
Again, the proposed explanatory note provides mere convenience if a witness does not meet the rules requirement for "good cause shown in compelling circumstances" to justify contemporaneous transmission. The note also cautions due process for an involuntary commitment hearing requires the respondent have an opportunity to confront and cross-examine witnesses.
Should Rule 43 be amended to follow the 1996 federal amendment; but with the above cited changes and notations in the explanatory note?