SYNOPSIS OF PROPOSED AMENDMENTS
A. North Dakota Rules of Civil Procedure
Rule 16, Pretrial Conferences; Scheduling; Management.
The amendment promotes the use of alternative dispute resolution processes by providing for discussion of its desirability at a pretrial conference.
Rule 30, Depositions Upon Oral Examination.
The amendment extends the period of time for signing a deposition from 10 to 30 days.
Rule 58, Entry and Notice of Entry of Judgment.
The provisions governing notice of entry of judgment are transferred to Rule 58(b) from Rule 77(d) to make the provisions easier to locate.
Rule 77, District Courts and Clerks.
Subdivision (d) is eliminated and the provisions transferred to Rule 58.
B. North Dakota Rules of Criminal Procedure
Rule 31, Verdict.
The amendment requires jurors to be polled individually rather than collectively when polling is requested, or when directed by the court on its own motion. The amendment follows the 1998 amendment to Fed.R.Crim.P. 31.
Rule 33, New Trial.
An amendment provides the time for moving for a new trial based on newly discovered evidence starts to run from the "verdict or finding of guilty," rather than the "final judgment." The amendment avoids confusion as to whether the final judgment being referred to is the final judgment of the trial court or the appellate court.
Another amendment extends the time for moving for a new trial based on newly discovered evidence from two to three years. The amendments follow the 1998 amendments to Fed.R.Crim.P. 33.
C. North Dakota Rules of Evidence
Rule 407, Subsequent Remedial Measures.
An amendment prohibits evidence of subsequent remedial measures to prove a defect in a product or its design, or that a warning or instruction should have accompanied a product. In essence, the exclusionary principle of Rule 407 is extended to product liability actions.
Another amendment clarifies what the triggering event is for determining whether a remedial measure is a subsequent or prior remedial measure. The amendment provides the triggering event is the time of "the injury or harm" rather than the negligent act.
The amendments follow the 1997 amendments to Fed.R.Ev. 407.
Rule 603, Oath or Affirmation.
Technical amendments are made to the Explanatory Note.
Rule 803, Hearsay Exceptions; Availability of Declarant Immaterial.
The catch-all hearsay exception in Rule 803(25) for statements having equivalent circumstantial guarantees of trustworthiness is transferred to new N.D.R.Ev. 807. The amendment follows the 1997 amendment to Fed.R.Ev. 803.
Rule 804, Hearsay Exceptions; Declarant Unavailable.
The catch-all hearsay exception in Rule 804(b)(5) for statements having equivalent circumstantial guarantees of trustworthiness is transferred to new N.D.R.Ev. 807.
A new hearsay exception is added in subdivision (b)(6) entitled "Forfeiture by Wrongdoing." The exception provides a party forfeits the right to object on hearsay grounds, when the party's own wrongdoing procured the unavailability of the declarant as a witness. The amendments follow the 1997 amendments to Fed.R.Ev. 804.
Rule 807, Residual Exception.
New Rule 807 contains the catch-all hearsay exception formerly in Rules 803(25) and 804(b)(5) for statements having equivalent circumstantial guaranties of trustworthiness.
D. North Dakota Rules of Appellate Procedure
Rule 4. Appeal--When Taken.
A technical amendment is made to the Explanatory Note.
E. North Dakota Rules of Court
Rule 3.3, Change of Judge for Postjudgment Motion or Proceeding.
This new rule provides a postjudgment motion or proceeding must be heard by the same judge before whom the underlying matter was heard, except as otherwise provided in the rule. The provisions are mainly from N.D.C.C. § 27-05-27, which is superseded by the rule.
An additional new exception allows a judge to amend a condition in a misdemeanor judgment entered by a different judge. The exception allows a judge to consolidate proceedings venued in the same county when a misdemeanant violates the conditions of more than one judgment.
Rule 6.11, Predeliberation Discussion By Jurors.
This new rule permits the court, with the consent of all parties, to allow the jury to engage in predeliberation discussion. The rule contains different admonishments for a discussion jury and a no discussion jury. Finally, the rule addresses the care of jurors during recess or adjournment.
Rule 11.1, Attorneys Not Licensed in North Dakota.
The amendments create a motion procedure and fee requirement for an attorney not licenced in North Dakota to obtain permission to appear in a North Dakota state court proceeding. Under the amendments, an appearance is not limited to actual physical presence. An attorney also makes an appearance by signing or otherwise being designated as counsel on a pleading, motion or other paper served or filed in an action venued in a North Dakota state court.
Rule 11.2, Withdrawal of Attorneys.
The amendments are stylistic.
Appendix B, Financial Statement and Affidavit.
The form contained in Appendix B is revised. The form provides a general overview of the assets and liabilities of the parties when interim relief is sought in a domestic relations case under N.D.R.Ct. 8.2.
F. North Dakota Supreme Court Administrative Rules
Rule 13, Judicial Referees.
An amendment eliminates the requirement for a district court judge to confirm, modify, or reject the findings and recommendations of a judicial referee in a written order of the court. Under the amendment, instead of making recommendations, a judicial referee will issue an order. A judge is only required to conduct a review of a judicial referee's findings and order if requested by a party.
G. North Dakota Rule on Local Court Procedural Rules
Section 10, Effective Term of Local Court Rule.
An amendment excepts a Local Court Procedure Rule or Administrative Rule governing case assignment procedure from automatically expiring after 5 years.