TO: Joint Procedure Committee
FROM: Andy Forward
DATE: December 30, 2009
RE: Rule 44, N.D.R.Civ.P., Proof of Official Record
At its September meeting, the Committee discussed the similarities between Rule 44 and N.D.R.Ev. 902. The Committee questioned whether Rule 44 was still needed. Because North Dakota’s rules are based on the federal rules, staff was instructed to research Fed.R.Civ.P. 44 and Fed.R.Evid. 902, to see whether there had been any discussion at the federal level about the similarity between the two rules.
The Advisory Committee on the Federal Rules of Evidence discussed this issue in 1998. The Advisory Committee considered whether Civil Rule 44 should be abrogated because of its overlap with certain Evidence Rules providing for authentication of official records, especially Evidence Rule 902. A memorandum on the subject was prepared for the Advisory Committee, which came to the following conclusions:
1) In some cases, specifically deportation proceedings, Civil Rule 44 is relied upon as a means of authenticating official records, because the Evidence Rules do not apply; additionally, any repeal of Civil Rule 44 may upset settled expectations in these areas.
2) Rule 44 directly overlaps with Evidence Rules 803(10), 902(3),(4), and (5), and 1005. A few situations could be hypothesized, however, in which authentication might be permitted under Civil Rule 44 and not under the Evidence Rules. It would be difficult to state that nothing would be lost in repealing Rule 44 and inserting some of the Rule’s language into the Evidence Rules.
3) There was nothing found indicating courts or litigants were dissatisfied with the overlap between Civil Rule 44 and the Evidence Rules.
4) Repeal of Civil Rule 44 would also affect the Bankruptcy Rules and Criminal Rule 27, both of which refer to Rule 44.
After considering the memorandum, and the fact that no problems have been created by the coexistence of Civil Rule 44 and the Evidence Rules, the Committee decided unanimously not to proceed with any effort to repeal Civil Rule 44.
As discussed above, repealing Rule 44 may not be as simple as it seems. The Committee must decide whether Rule 44 should be repealed in the absence of any indication of a problem in practice.
A copy of the memorandum prepared for the Advisory Committee on the Federal Rules of Evidence is attached. The proposed form and style amendments to Rule 44 are also attached along with a copy of the amendments to the federal rule.
In the existing rule, unique language was added to subdivision (a) providing that: “A
public officer having a seal may make such certificate with respect to records in the officer’s
custody.” The Committee may wish to examine the proposed new language to determine
whether this additional language is still needed – it is not included in the proposed