M E M O
TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Incorporation of Discovery Guidelines into North Dakota Rules
At its September meeting, the Committee instructed staff to prepare draft rule revisions that would incorporate several of the American Bar Association's Discovery Guidelines into the North Dakota rules.
Specifically, the Committee decided to incorporate the following Guidelines:
Guideline 3: Discovery should be limited unless the court, on motion of a party, permits expanded discovery in an appropriate case.
Guideline 5: The court should not entertain discovery motions until counsel have met and conferred in a good faith effort to resolve discovery disputes and movant has filed a detailed certificate of compliance.
Guideline 6: The court must actively control the discovery process and should not hesitate to impose sanctions when appropriate.
Guideline 7: Counsel should at all times seek to control unnecessary expenses and delay.
Guideline 8: When a party fails to comply with its disclosure obligations, the court has a duty to impose sanctions when appropriate.
Guideline 9: The court should encourage counsel at all times to use alternative dispute resolution mechanisms to resolve all substantive issues in civil litigation.
While some of the Guidelines selected for incorporation by the Committee are hortatory and unsuitable for incorporation directly into the rules, all of the Guidelines appear to be drawn from rule-based discovery innovations adopted by the federal government and various states.
Because North Dakota has traditionally looked to the federal rules as a model, staff relied primarily on federal rule language in attempting to incorporate the chosen Guidelines into North Dakota's rules. Proposed revisions to N.D.R.Civ.P. 16, 26, 30, 33 and 37 are submitted here for the Committee's consideration.
As it reviews these rule drafts, the Committee may wish to consider whether any relevant language from the Discovery Guidelines, or any reference to the ABA or the Guidelines at all, should be incorporated into any explanatory notes. Because the explanatory notes to the civil procedure rules in general are terse at present, staff attempted to limit adding too much new language to the explanatory notes of the amended rules.