M E M O
TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 26, N.D.R.Civ.P.; General Provisions Governing Discovery
Several changes are proposed for N.D.R.Civ.P. 26 in an effort to incorporate elements of several Discovery Guidelines:
Paragraph (b)(1) is amended to incorporate the narrower federal definition of discoverable material, but it allows parties to seek leave of court to obtain discovery of additional material. A further amendment allows the court control over the number of depositions and interrogatories.
Subdivision (c) is amended to allow a court to issue a protective order on its own initiative.
There are corresponding amendments to the Explanatory Note noting these changes.
These changes reflect Guideline 3 ("Discovery should be limited unless the court, on motion of a party, permits expanded discovery in an appropriate case") and Guideline 6 ("The court must actively control the discovery process and should not hesitate to impose sanctions when appropriate").
Subdivision (g) has been part of the rule since 1996 and is amended slightly for clarity. Additional explanatory note text for subdivision (g) is added to explain that the subdivision imposes an affirmative duty on parties to engage in discovery in a responsible manner and that the subdivision allows the court to curb discovery abuse by imposing sanctions.
Subdivision (g) in general and as amended reflects Guideline 6 (court control), Guideline 7 ("Counsel should at all times seek to control unnecessary expenses and delay") and Guideline 8 ("When a party fails to comply with its disclosure obligations, the court has a duty to impose sanctions when appropriate").