MINUTES OF MEETING
Joint Procedure Committee
October 11-12, 2007
TABLE OF CONTENTS
Annual Rules Package 2
Rule 16, N.D.R.Civ.P., Pretrial Conferences; Scheduling; Management 2
Rule 10, N.D.R.App.P., The Record on Appeal 3
Order 16, N.D. Sup. Ct. Admin. R., Electronic Filing Pilot Project for the District Courts 3
Report on Commencement of Actions 5
Rule 4, N.D.R.Civ.P., Persons Subject to Jurisdiction - Process - Service 7
Rule 3, N.D.R.Civ.P., Commencement of Action 10
Ceremony Honoring Departing Members 12
Rule 5, N.D.R.Civ.P., Service and Filing of Pleadings and Other Papers 12
Additional Items for Report on Commencement of Actions 13
Rule 32.2, N.D.R.Crim.P., Pretrial Diversion 15
Unbundled Legal Services 20
Form 9, N.D.R.Crim.P., Appendix A 27
Privacy Protection for Filings Made with the Court 28
Rule 27, N.D.R.Civ.P., Depositions Before Action or Pending Appeal 30
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on October 11, 2007, by the Chair, Justice Dale Sandstrom.
Justice Dale V. Sandstrom, Chair
Honorable Georgia Dawson
Honorable Donovan Foughty
Honorable M. Richard Geiger
Honorable John Greenwood
Honorable Debbie Kleven
Honorable David W. Nelson
Honorable Michael G. Sturdevant
Mr. Larry L. Boschee
Mr. Daniel Dunn (Friday only)
Mr. Galen J. Mack (Thursday only)
Ms. Jeanne L. McLean
Mr. Ronald H. McLean
Ms. Joanne Hager Ottmar
Mr. Steven W. Plambeck
Mr. Bruce D. Quick (Thursday only)
Honorable Allan L. Schmalenberger
Honorable Thomas J. Schneider
Mr. Daniel S. Kuntz
Ms. Cathy Howe Schmitz
The Chair discussed the schedule for the meeting and reviewed the schedule for future meetings.
APPROVAL OF MINUTES
Judge Geiger MOVED to approve the minutes as corrected. Mr. Boschee seconded. Motion CARRIED unanimously.
ANNUAL RULES PACKAGE (PAGES 32-37 OF THE AGENDA MATERIAL)
Staff explained a hearing had been scheduled on the Committee's Annual Rules Package. Staff informed the Committee the proposed amendments had been posted on the Supreme Court website and they were also available in hard copy. Staff advised the Committee of the deadlines for submitting comments on the proposed amendments to the Court.
RULE 16, N.D.R.Civ.P. - PRETRIAL CONFERENCES; SCHEDULING; MANAGEMENT (PAGES 38-50 OF THE AGENDA MATERIAL)
Staff explained the Committee had included proposed amendments related to the discovery of electronically stored information in the Annual Rules Package. Staff indicated the Committee might also consider suggesting to the Supreme Court an amendment to Rule 16 to include discovery of electronic information on the rule's list of potential topics for discussion at pretrial conferences.
Mr. Mack MOVED to suggest the Supreme Court amend Rule 16 in conjunction with the Annual Rules Package. Ms. Ottmar seconded. Motion CARRIED unanimously.
RULE 10, N.D.R.App.P. - THE RECORD ON APPEAL (PAGES 51-59 OF THE AGENDA MATERIAL)
Staff said the Committee had submitted an amendment to Rule 10 to the Supreme Court. Staff suggested the Committee consider submitting a further amendment that would exclude references to "diskettes" from Rule 10.
Judge Nelson MOVED to suggest the Supreme Court amend Rule 10 in conjunction with the Annual Rules Package. Judge Foughty seconded.
By unanimous consent, a correction was made to Line 52 to delete the word "a."
Motion CARRIED unanimously.
ORDER 16, N.D. Sup. Ct. Admin. R. - ELECTRONIC FILING PILOT PROJECT FOR THE DISTRICT COURTS (PAGES 60-68 OF THE AGENDA MATERIAL)
Staff said the Committee had submitted an amendment to Order 16 to the Supreme Court. Staff explained part of the proposed amendment contained a reference to notary public signatures. Staff reported the Secretary of State had objected to the proposed amendment. Staff asked if the Committee wished to respond to the Secretary of State's comments.
A member asked whether the rule contemplated there would be a document somewhere that a notary public watched someone sign and then affixed a notary seal and signature to, a so-called "original document." The member asked if, under the rule, an electronic copy of the "original" might be filed with, for example, a typed signature.
Staff said the rule was designed to account for the electronic transmission of documents to the Court. Staff said under the rule, a paper document might be put together in the manner described by the member and then faxed to the court or scanned and sent as
a .pdf. Under the rule, the electronically transmitted document would have the same effect as a paper document. The member suggested such an electronic document would be essentially the same as a photocopied document.
A member asked whether the rule should have a provision allowing the court to request an attorney produce the signed paper document so the court could see the original signature. A member pointed out the general rule of law was something a person intends to be their signature is their signature. The member said if someone intends a rubber stamping or a big "x" to be their signature, is their signature.
A member commented before a document can be notarized a person needs to sign in the notary's presence and the notary needs to verify the person's identity. The member said the person could rubber stamp or "x" their signature but the notary would have to be present when that happened. A member responded that a notary does have to know the person or identify the person before the document can be sealed.
A member said under the federal court system, which relies heavily on electronic filing, it is envisioned there will be a paper document held somewhere that is signed and notarized. A member responded the IRS allows electronic filing of income tax returns with electronic signatures only if certain "ceremonial" steps are followed as part of the filing process.
A member said N.D.C.C. § 9-16-10 seemed to be self-implementing.
Staff said under N.D.R.Ct. 3.1, the court is allowed to treat the first filed document as the "original" regardless of its form -- fax, photocopy, etc. Rule 3.1 also allows a party to later substitute in the file, with court approval, a signed paper document for the first filed document.
A member said the form of the document could become an issue at trial. A witness could be asked whether he or she signed a given document, and if the document is not in the original paper form, the witness may not be able to testify to their signature.
A member said there was something in the federal court rules that allowed an electronic copy to be submitted to the court but required the parties to preserve the paper original. Staff was asked to find this provision in preparation for the hearing on the order.
The Chair pointed out companies producing documents to facilitate electronic document handling were beginning to produce special products for the courts that would allow judges to electronically sign documents and then would render the electronic signature in an
official, ceremonial manner on the document.
REPORT ON COMMENCEMENT OF ACTIONS (PAGES 69-72 OF THE AGENDA MATERIAL)
Staff reviewed the Committee's deliberations on the commencement of actions report since September 2006. Staff reported two attorneys had submitted comments for the Committee to consider in finalizing its report.
The Chair updated the Committee on the status of improvements to the state courts' electronic case information system. The Chair explained the courts now use the venerable Uniform Court Information System. The Chair said court technology staff had traveled to the biennial Court Technology Conference to inspect potential replacements for UCIS. The Chair said there are several good systems now being produced by several competitive companies.
The Chair said all of the systems were built around an electronic case record. Documents would be stored and accessed in electronic form until someone printed out "paper on demand." The Chair said forms would be incorporated into the system with fields that could be populated by the court on demand and then made a part of the case file.
In answer to a question, the Chair said documents going into the case file would either be filed electronically or filed in paper form and then scanned into the case file. The electronic document in the electronic case file would be the official document. A paper file would no longer be maintained.
The Chair said there could be many different levels of access to a case file once it was put into electronic form. There could be public terminals for public access at the court house, but court officials and attorneys could be given full access through their own computers.
A member asked how many states had implemented electronic case files. The Chair said he did not know how many systems were up and running, but most states seemed to be moving in the direction of electronic files. The Chair said the plan in North Dakota is for the courts to develop a recommendation on how to move forward with electronic case management by Fall 2008 so a budget request can be prepared for the next legislative session.
A member asked how long the system would take to implement once a decision was made on which system to adopt. The Chair said this was uncertain but North Dakota court officials were making contacts with courts in other states to see how implementation of various systems is progressing. The Chair said North Dakota was ahead of most states because it had already put all the courts on one server.
The Chair said, once the legislature appropriated the funds, the goal was for the courts to implement the system within two years. The Chair said moving to electronic case management would change the way the courts do business in a significant way. The Chair said electronic case management would allow information to be handled more efficiently and would solve the problem of where to find case files -- they will always be on the server.
A member asked whether retaining a system of commencement by service would create impediments to the implementation of electronic case management. The member said there is not much paper generated prior to filing in cases that are commenced by service, except for discovery documents, which are not filed.
The Chair responded that, under an electronic case management system, documents could be served through the system as soon as they were filed. If commencement by filing were in place, this process could begin immediately. If commencement by service is retained, any documents generated prior to filing would have to be taken into the system, either in electronic form or by scanning.
A member observed Minnesota uses commencement by service but is also working on moving to electronic case management system.
A member commented the Social Security Administration has moved to an electronic case management system and has needed to scan large volumes of documents such as medical records to put them into the system.
The Chair commented the North Dakota U.S. District Court has made electronic filing essentially mandatory and the Bankruptcy Court has also gone to an electronic system. The members confirmed this.
A member commented the federal electronic case management system generates an incredible amount of e-mail because service of documents is accomplished through the system and a notice is therefore sent out each time a document is filed with the court. The member said it is common for lawyers who regularly practice in federal court to receive 10-15 e-mails a day from the court.
The member commented office staff needs to be trained on how to open the e-mails from the federal court because, under the electronic service system the court uses, e-mail recipients only get one chance to view the electronically served document for free -- after the first view, the lawyer must pay to view the document through the federal PACER system.
The member said the electronic service system has resulted in "zero" gains to
practicing lawyers. A member said the main problem was with each individual item filed (such as a separate affidavit of service) an e-mail is sent. The member said the federal court should group related filings in a single e-mail. The member said the current system leads to excess work in reviewing each e-mail.
A member said law office staff needs to do a lot of work to prepare documents for electronic filing. While office generated documents can be prepared in electronic form, outside documents such as attachments to briefs need to be scanned. The member said the court also limits the size of electronic files it accepts, so large and complicated filings need to be broken down into multiple takes.
The Chair commented vendors of electronic filing systems like to point out the ways their systems improve on the federal system. For example, some commercial systems allow filings to be bundled, with related parts sent together.
The Chair suggested the Committee review the rule proposals included in the report package and then return again to the topic of whether to recommend a shift to commencement by filing.
RULE 4, N.D.R.Civ.P. - PERSONS SUBJECT TO JURISDICTIONPROCESS SERVICE (PAGES 73-92 OF THE AGENDA MATERIAL)
Staff said a member had requested the Committee consider further amendments to Rule 4, which is part of the commencement of actions report. Staff explained the proposal related to the time deadline for serving the complaint after filing.
Mr. Boschee MOVED to amend the Rule 4 proposal currently included in the report to the Supreme Court. Judge Sturdevant seconded.
A member said a move to commencement by filing would bring substantive changes to the legal process. The member said legislative action, not court action alone, would be required to effect these changes. The member said the issue of how much time should be allowed for service after an action was commenced by filing is tied to the substantive question of the action's limitations period.
The member reviewed authorities supporting the position service requirements are substantive when they are linked with statutes of limitation. The member cited Walker v. Armco Steel Corp., 446 U.S. 740 (1980). The member explained the Walker plaintiff filed a case within Oklahoma's two year limitations period but did not make service on the defendant until after the statute had run. The Walker Court noted, for administrative
purposes, a case is commenced under Fed.R.Civ.P. 3 by filing. The Court continued, however, state law governed the running of the limitations period and Oklahoma had made a substantive decision defendants had to be provided notice, through service, of the existence of the action before the limitations period ended.
The member said, under the Rule 4 proposal, cases could be served after the limitations period ended. The member said a manufacturer may not know of an accident involving a product until six years later, at the end of the limitations period. The member said this is a long time to wait to begin the process of investigating the accident and preparing for trial. The member said under current law, actual notice of the commencement of an action through service must be given before the limitations period expires.
The member also cited Lundstrom v. Lyon, 80 So.2d 771 (Fla. 1956). A Florida court rule said an action was commenced by filing while a Florida statute said an action needed to be served within the limitations period. The member explained the Lundstrom court held the rule applied to the administration of the action within the court system while the statute requiring service applied to tolling of the limitations period. The Lundstrom court said the rule could not abrogate the statute because the statute contained substantive law.
The member also provided a list showing the North Dakota six-year statute of limitations was lengthy -- only Minnesota and Maine allow similarly lengthy periods of time to bring an action. The member said if North Dakota adopted commencement by filing and then allowed 120 days after filing for service, this would create an even longer gap before the defendant learned about the claim against it. The member said the defendant should know sooner, not later, of the lawsuit so it would have a fair chance to collect evidence to defend itself.
The member admitted some states allow a long time for service after filing, but the member argued these time periods needed to be looked at along with the limitations period. The member pointed out Montana allows three years for service after filing, but also Montana's limitations period is three years, which means service would be required less than six years after the event.
The member pointed out Maine has a six-year statute of limitations, but it also has a rule requiring service within 90 days of filing and it does not allow a "good-faith" extension of the service deadline.
Mr. Boschee moved to substitute "90" for "120" at page 87, line 280, to place a period after the word "defendant" on line 282, and to strike the remainder of the paragraph. Judge Sturdevant seconded.
A member said while notice of the case is sometimes withheld from defendants, there are other defendants who hide from service. The member said, if a defendant goes to Mexico for the winter and avoids service during the 90-day period, this would be good cause to allow later service. The member said the provision allowing a good cause extension of the service period should be retained.
The member also said shortening the service period from 120 days to 90 days was not a good idea. The member said this shorter deadline would place a burden on lawyers and would give defendants attempting to avoid service a greater opportunity to do so. A member agreed the good cause extension language should be retained.
A member responded the current system requires service to be made within six years and anything beyond is frosting on the cake. The member said if 90 days is allowed for service after filing, lawyers will have all the time they have now to serve plus an additional three months.
A member said the number of days allowed by rule for service after filing could not add to the limitations period because N.D.C.C. § 28-01-38 requires service before the end of the limitations period. The member said this was a substantive statute and if a plaintiff did not serve a lawsuit within the six year limitations period the plaintiff would be time barred regardless of when they had filed.
A member said limiting the time for service to 90 days was necessary because the North Dakota Supreme Court had not yet decided whether N.D.C.C. § 28-01-38 was a procedural or substantive statute. The member said the Court could decide the statute was procedural after considering the Committee's report.
A member asked why it was necessary to remove the good cause extension language. The member said if the language was removed, a plaintiff could present a genuinely good reason for failing to serve within the required period and the court would have no option but to dismiss the action if the service deadline was not met.
A member responded that, with the limitations period and the time allowed for service after filing, plaintiffs have plenty of time to serve the complaint.
Judge Nelson MOVED to amend the motion to restore the good cause extension language. Mr. Boschee seconded.
A member said when a rule provides a court "must dismiss the action" and allows the court no discretion, there is a possibility an unfair dismissal might occur.
The motion to amend CARRIED.
A member said the 120-day period to serve should be retained because it allows more flexibility, and extending the period would be more appropriate than reducing it. Another member agreed 90 days would be too short a period to account for unexpected events that might prevent service.
A member asked whether the Committee had already made a decision to recommend N.D.C.C. § 28-01-38 be superseded if commencement by filing was adopted. Staff and the Chair explained the issue was still on the table because the Committee had not yet completed work on its report.
The motion to amend the Rule 4 proposal to change the service deadline from 120 to 90 days was DEFEATED.
Mr. McLean MOVED to change "120"at page 87, line 280, to "180." Ms. Ottmar seconded.
A member said if North Dakota moves to commencement by filing, it would not make sense to allow a case to sit around for six months without the summons and complaint being served. The member said this would be administratively troublesome. The member said 90 days may be too short a period for requiring service but 180 would be too long.
A member said if a complaint needs to be served more than 120 days after it is filed, the plaintiff should come to court and seek an extension based on good cause.
The motion was DEFEATED 6-9.
RULE 3, N.D.R.Civ.P. - COMMENCEMENT OF ACTION (PAGE 93 OF THE AGENDA MATERIAL)
Mr. Plambeck MOVED to delete line 16 on page 93 to eliminate the statement superseding N.D.C.C. § 28-01-38. Judge Nelson seconded.
A member said the cases cited in the discussion of Rule 4 indicate a requirement that a summons and complaint be served within a limitations period is a substantive requirement, not a procedural one. The member said Paracelsus Healthcare Corp. v. Philips Medical Systems, 384 F.3d 492 (8th Cir. 2004), supports the position the service requirement in N.D.C.C. § 28-01-38 is a substantive requirement, not a procedural requirement. The member said a legislative change would be needed before filing the complaint could be
considered the act that commences a case for statute of limitations purposes.
A member asked whether there was a North Dakota Supreme Court case holding the statute of limitations was substantive. A member responded choice of law cases have created some confusion on this issue, with courts concluding statutes of limitation are intended to protect the forum state antheses statutes, therefore, should be applied procedurally instead of substantively. The member said, if limitations periods are intended to protect a defendant from having to answer a stale claim, the key question was who has the authority to decide when a period expires. The member said the legislature has made a substantive decision service is required before a limitations period is tolled.
A member asked what further steps would need to be taken if the Court approved the proposed amendments to Rule 3 and a system of commencement by filing was put in place in North Dakota without superseding N.D.C.C. § 28-01-38. A member replied actions would be commenced by filing but service would be required in order to toll the limitations period. A member said there should then be language added to the comments pointing out that filing would commence an action for administrative purposes only.
A member commented the Washington rule, which the Committee reviewed at an earlier meeting, makes it clear a case is commenced for administrative purposes when it is filed but service is necessary to satisfy limitations period requirements. The member said the rule shows Washington recognized the dichotomy between substantive and procedural aspects of commencement.
A member said the cases reviewed by the Committee earlier in the meeting involved the issue of defining when an action is commenced for administrative purposes and for statute of limitations purposes. The member said the cases show there are two questions involved when asking when a case is commenced. The member said it may be important to put something in the explanatory note to indicate the proposed change in the rule does not change what a party must do to satisfy the statute of limitations.
A member said the Committee should work to help the Bar and not trap the Bar so there should be some indication in the explanatory note that lawyers should look to the statute. The Chair suggested the issue of the interaction between N.D.C.C. § 28-01-38 and the proposed rule amendments should also be separately addressed in the Committee's report to the Court.
By unanimous consent, the motion was changed to delete "Superseded" on page 93, line 16, and replace with "Considered."
The motion to amend the language on line 16 CARRIED.
CEREMONY HONORING DEPARTING MEMBERS
Chief Justice Gerald VandeWalle visited the meeting to present plaques honoring the service of Chair Justice Dale Sandstrom and members Judge Donovan Foughty and Mr. Dan Kuntz. The three longtime members will be departing the Committee effective December 31, 2007, because of term limits.
RULE 3, N.D.R.Civ.P. - COMMENCEMENT OF ACTION (PAGE 93 OF THE AGENDA MATERIAL)
Discussion resumed on proposed amendments to Rule 3. Staff passed out copies of Washington Civil Rule 3, that state's commencement of actions rule.
Mr. Mack MOVED to add a new sentence beginning on page 93, line 4: "An action is not commenced for the purpose of tolling a statute of limitations except as provided in N.D.C.C. § 28-01-38." Judge Nelson seconded.
A member said the proposed amendment would put people on notice of the statutory requirement that an action be served before a limitations period is tolled. A member asked whether the amendment should read "as provided by statute" instead of giving the statute number. Several members responded that the specific statute listed is the statute that imposes the service requirement.
The motion CARRIED unanimously.
RULE 5, N.D.R.Civ.P. - SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS (PAGES 94-99 OF THE AGENDA MATERIAL)
A member said the new language beginning on page 96, line 46, was very poorly worded. The Committee discussed possible approaches to revising the language. Staff pointed out that federal rule makers had recently revised similar language in the federal rule. The Committee discussed the federal language and the consensus was that it was an improvement.
Ms. Ottmar MOVED to amend the Rule 5 proposal on page 96, lines 46-48, by deleting the underscored language and replacing it with: "Any paper after the complaint that is required to be servedtogether with a certificate of servicemust be filed within a reasonable time after service." In addition, the motion included deletion of "except" on line
48 and replacing it with "But" to start a new sentence. Ms. McLean seconded.
A member asked why the proposal referred to "court" in one sentence and "the clerk" in the next sentence. By unanimous consent, the language "with the clerk" was deleted from page 96, line 46.
The motion CARRIED unanimously.
ADDITIONAL ITEMS FOR REPORT ON COMMENCEMENT OF ACTIONS (PAGES 100-120 OF THE AGENDA MATERIAL)
The Committee reviewed the additional rule proposals it had previously designated for inclusion in the commencement of actions report: N.D.R.Civ.P. 12, 16 and 31; N.D.R.Ct. 8.3; and N.D. Sup. Ct. Admin. R. Order 16. The Committee made no changes to these rule proposals.
The Chair asked whether there was consensus on what to advise the Court regarding N.D.C.C. § 28-01-38. The Committee's opinion was that the statute was substantive and not procedural and that any change to the statute needed to be made by the legislature. The Committee agreed that if the Court concluded the statute was procedural, it could be superseded by rule.
The Chair said that the remaining question was whether the Committee would recommend that the Court adopt rule amendments to change the way a civil action is commenced in North Dakota.
Judge Nelson MOVED that the Committee recommend that the Court retain the existing system of commencement by service. Ms. Ottmar seconded.
A member said that the current system should not be changed. The members said the benefits of retaining the current system outweigh the benefits of changing to commencement by filing. The member added that substantive law, in the form of N.D.C.C. § 28-01-38, still required service before an action could be commenced.
The member admitted that electronic filing is on the horizon and will be in general use soon. The member asked if commencement by filing was needed to make electronic filing work. The member suggested that parties could commence an action by service and then file the action, electronically if necessary, when they thought it appropriate. The member asked why it was important, in an age of electronic filing, to have the complaint filed as soon as the action was commenced.
The Chair said that electronic filing could be used regardless of whether the action was commenced by filing or service. The Chair said that a system using electronic filing and court-based electronic service, as is used by the federal courts, works best when all the documents in a case are in the system from the beginning. The Chair said that some states currently have electronic filing with the court but they require the parties to accomplish service. The Chair said that in a system like this, parties sometimes play games, filing documents with the court and then failing to serve those documents on other parties in a timely fashion.
A member said that the federal judiciary committee for the 8th Circuit had moved very slowly on electronic filing until the anthrax scare. The member said the committee, and the federal judiciary in general, then expedited electronic filing for security purposes. A member commented there were many strong arguments to support electronic filing. The member said these arguments did not necessarily support commencement by filing.
A member responded that the main argument in support of commencement by filing was that such a system allows greater judicial case management. The member said that under the current system, case management was left in the hands of the parties and their lawyers.
A member said that it is preferable to allow the attorneys the opportunity to solve the problems in a given case before the court steps in, as they can under the current system of commencement by service. The member said that going to the court should be a last resort if the parties cannot resolve a matter. The member said that the public would not be served by shifting to commencement by filing.
A member said that having the opportunity to resolve a matter out of court is particularly important in family law cases. The member said there are no benefits to be gained by parties in family law cases under commencement by filing.
A member said that small claims court already has a system equivalent to commencement by filing. The member said that courts spend a significant amount of time dealing with cases that settle before the court date or cases that are filed but the plaintiff fails to serve papers.
A member said that a fair number of collection actions get served and never get filed because they are resolved without the parties going to court. The member said that this was fine, and several other members agreed.
A member said that attorneys are professional people who know how to do their jobs. The member said that if attorneys want to go to court, they can and then the court can
manage the case. The member said that it was not an advantage for the court to get involved in cases any earlier.
The motion to recommend to the Supreme Court that the present system of commencement by service be retained CARRIED 14-1.
RULE 32.2, N.D.R.Crim.P. - PRETRIAL DIVERSION (PAGES 121-131 OF THE AGENDA MATERIAL)
Staff explained the Committee started work on drafting and polishing Rule 32.2, a proposed new rule, at its April meeting. Staff said the rule was back for a second look and additional work.
Mr. Quick MOVED to adopt the proposed new Rule 32.2. Judge Kleven seconded.
A member reminded the Committee that the proposed new rule was based in large part on the Minnesota pretrial diversion rule. The member said that Minnesota had employed pretrial diversion successfully for many years. The member said the proposal gave more options to attorneys and others who work in the criminal justice system. The member said pretrial diversion would not replace probation or prosecutors and it would not dramatically change the system in North Dakota. The member said it was something that could be used in the rare circumstance when it seems appropriate to the defense attorney and the prosecutor.
The member said it was true, as some state's attorneys who submitted comments had noted, that prosecutors have the power to offer pretrial diversion under the current rules. The member said, however, that many state's attorneys do not believe they have the power to offer pretrial diversion. The member said that state's attorneys would not be forced to offer pretrial diversion if the rule was adopted, it would be up to them whether to use the option.
A member shared additional comments from state's attorneys with the Committee. The member said the general flavor of the comments was that having a pretrial diversion rule was not necessary because the option was currently available in addition to other options such as deferred imposition of sentence. The member said options like this should be used rarely. The member said it was not necessary to have a rule for every possible situation. The member said if the rule is approved it is possible that use of pretrial diversion would become more commonplace and state's attorneys would be faced with cost and supervision issues.
The member said that the phrase "material violation" in the rule was not defined and that "material" could be struck to eliminate confusion. The member said that such a change
was unlikely to create a situation where de minimis violations were used to void agreements. The member said state's attorneys would have to make decisions on whether it was worth the time, effort, and resources to bring the violation to court.
Mr. Mack MOVED to strike the word "material" on page 125, lines 43 and 49. Judge Geiger seconded.
A member said that prosecutors and the courts should not have to deal with the issue of what is and is not "material." The member said that it was possible that a person could have a condition not to enter an establishment where liquor was for sale because of a problem with alcohol in their past. But after being caught in such a place, they may claim they only went there for the food. The member said the prosecutor should be able to decide to pursue this violation without getting wrapped up with whether it was "material."
The motion CARRIED unanimously.
A member said that there could be a problem with the proposed rule's conditions. The member said now, lawyers who make pretrial diversion arrangements face few limitations. The member said that lawyers may be restrained in making agreements by the specific conditions and time limits set out in the proposed rule. The member said this might limit parties' power to make the agreements they want.
A member asked why parties would enter into a deferred prosecution in the future if the rule was enacted. A member responded that parties might not like the conditions or time limits in the rule. A member said that the proposed rule allowed long-term supervision, as long as probation after a sentence.
A member said that the concerns expressed in the comments about the provision allowing defendants to terminate agreements unilaterally were legitimate, although it would be a rare circumstance when a defendant would want to terminate a diversion agreement and face prosecution. The member said it would most likely happen when the defendant changed his or her mind about the agreement and wanted it revoked. The member said it was likely the prosecution would agree to such a revocation request and re-prosecute.
A member said that the proposed rule in general would be good to adopt because it would give defendants, courts and prosecutors more flexibility. The member said that attorneys are hesitant to enter into diversion agreements now because they are not specifically authorized by the rules. The member said that the cases that would fall under the rule would be not be common because prosecutors would exercise their discretion, but the member said that pretrial diversion is an appropriate option in some cases.
A member asked whether speedy trial rules would limit later prosecution in cases where the diversion agreement was terminated. A member said that waiver of the speedy trial rules is usually made a condition of the diversion agreement.
A member said that allowing the defendant to terminate the agreement unilaterally could be a problem in a case where evidence was no longer available for use in a prosecution. The member said that the possibility of unilateral termination by the defendant might also diminish a prosecutor's willingness to enter into a pretrial diversion agreement.
The Chair suggested that the Committee review the detailed concerns raised by Stutsman County State's Attorney Fritz Fremgen in his letter to the Committee.
In his letter, Mr. Fremgen questioned the use of the phrase "no later offenses" on line 64.
Judge Nelson MOVED to replace "later offenses" with "violation" on page 126, line 64. Mr. Quick seconded.
A member said that the defendant might agree not to enter any bars; entering a bar is not an "offense" but it would be a "violation" of the agreement.
Judge Geiger asked unanimous consent for a substitute motion which would replace "violated no conditions" for "committed no later offenses" on page 126, line 64. The Committee gave unanimous consent.
Mr. Mack MOVED a substitute motion to replace "committed no later offenses as specified in" with "not violated the." Mr. Quick seconded. Motion to substitute CARRIED.
The motion as substituted CARRIED.
A member said that subdivision (g) was unnecessary. The member said that the defendant and the prosecutor enter into an agreement and the court approves it. But then under (g), the defendant can seek to have approved agreement terminated early. The member said that the defendant should not have the option of going to the court to terminate the agreement early. The member said that any early termination should be the result of an agreement between the defendant and the prosecutor.
A member said that subdivision (g) provides a potential remedy that is unlikely to be approved by a court.
Mr. Mack MOVED to delete subdivision (g) on pages 125-126, lines 61-65. Mr. Quick seconded.
A member said that armed forces recruiters have at times asked the court about removing a deferred imposition of sentence early so that the defendant can join the military. The member said courts usually agree to such requests. The member asked whether subdivision (g) should be retained to allow defendants to request early termination of diversion agreements for military service.
A member said that recruiters characterize any string attached to a defendant as "probation." The member said all obligations to the court must be completed before a defendant is allowed to join the military. A member said this is done to avoid any "join the Army or go to jail" sentencing. The member said subdivision (g) was not needed because both sides could agree to terminate the agreement and this would eliminate the defendant's obligations--the defendant would just need to convince the prosecutor rather than the judge.
The motion to delete subdivision (g) CARRIED.
A member questioned the use of the term "supervised" on page 123, line 20. The member said it was not clear what sort of supervision would be needed and who would be allowed to provide it.
Mr. Mack MOVED to delete the term "supervised" on page 123, line 20. Mr. Quick seconded. Motion CARRIED unanimously.
A member said that some state's attorneys had commented that the additional conditions on pages 123-124, lines 18-24, could be viewed as exclusive conditions. The member said that the preference would be to allow a broad range of conditions to be used. Committee members responded that the language of the rule seemed broad enough to allow a range of conditions to be used, but that perhaps a "catch all" provision could be added.
A member said that having unlimited conditions could also have drawbacks. The member said that courts have sometimes been criticized for requiring defendants to give to a specific cause.
Judge Geiger MOVED to amend beginning at page 123, line 16 after the word "specify:" to delete "one or more of the following" on lines 16-17 and to add "including, but not limited to" before the colon on line 17. Mr. Mack seconded.
A member commented that "including" by definition includes "but not limited to."
The member asked if the "but not limited to" language was necessary. A member responded that the "not limited to" language should be retained so that defense attorneys, prosecutors and judges would know that the list is inclusive.
The motion CARRIED.
A member asked if the language on page 123, line 19, was too restrictive.
Judge Kleven MOVED to delete page 123, line 19, except for the semicolon. Judge Foughty seconded.
A member said that the language on line 19 was important because conditions placed on the defendant should be related to the charges against the defendant. A member responded that sometimes the condition placed on the defendant may be connected to the defendant's history rather than to the specific offense charged. The member said that any condition placed on the defendant would be based on an agreement between the defense and prosecution, and that if the defendant thought that a condition was outlandish they could refuse to agree to it.
The motion CARRIED 14-1.
A member reminded the Committee that the comments on the proposal had voiced particular concern with the provision allowing the defendant to unilaterally terminate the agreement. The member suggested that the Committee address this provision.
Mr. Boschee MOVED to delete the language on page 124, lines 35-37. Mr. Mack seconded.
A member said that any deferred prosecution was a gift because the defendant ends up facing no charges. Therefore, there were few situations where a defendant would want to withdraw from a deferred prosecution. The member said that it was reasonable to remove the provision to ally the concerns of prosecutors.
A member said that some courts order defendants to participate in faith-based programs, but that most do not do so without the defendant's cooperation. The member said that the unilateral opt-out language might make it easier for courts to order the defendant to try such a program, knowing that the defendant could opt-out later.
A member said that there were alternative ways to convince a defendant to try working with a faith-based program, such as having participation in the program be a
prerequisite to diversion.
A member said the opt-out language should be removed. The member said it was the nature of any agreement that it could be modified or terminated on agreement of the parties. A member said that if a defendant could no longer tolerate living up to an agreement, it was very likely the court and prosecutor would allow the defendant out of the agreement to face renewed prosecution.
The motion CARRIED 14-1.
The motion to send the Rule 32.2 proposal, as amended, to the Supreme Court as part of the annual rules package CARRIED unanimously.
The meeting recessed at approximately 4:30 p.m., on October 11, 2007.
October 12, 2007 - Friday
The meeting was called to order at approximately 9:00 a.m., by Justice Dale Sandstrom, Chair.
The Chair discussed the schedule for the day's meeting.
UNBUNDLED LEGAL SERVICES (PAGES 132-169 OF THE AGENDA MATERIAL)
Staff explained the Supreme Court had requested the Committee to prepare rule amendments to facilitate the provision of "unbundled legal services" in North Dakota. Staff explained "unbundled legal services" are specific and limited services attorneys provided to clients, particularly clients who are attempting to represent themselves in legal proceedings.
Committee member Judge Sturdevant explained his involvement in work to assist unrepresented litigants. He explained that unbundled legal services were one approach to assisting unrepresented litigants. This would allow lawyers to be hired to do just one segment of the litigation, such as drafting the judgment after the parties had worked their way through the lawsuit. He said rules needed to be changed to ensure that the lawyer was not obligated to the client for any other portion of the litigation.
Judge Sturdevant said that a "limited appearance" would be used to allow lawyers to limit their involvement in a matter. A lawyer might do the pleadings and indicate that the
appearance is limited to preparing the pleadings. Then, opposing counsel would not be required to deal with the lawyer as the proceedings progressed but with the party.
A member said that in some states as many as 40 percent of cases involved self-represented litigants. A member said that an increasing number of litigants who could afford lawyers are choosing to represent themselves and the numbers are increasing.
A member said that one area where having unbundled legal services would be very useful was in document preparation. The member said courts could encourage unrepresented parties to consult with attorneys in the preparation of closing documents. Members commented that final judgments and qualified domestic relations orders prepared by pro se litigants were often not well drafted.
Judge Sturdevant MOVED to adopt the proposed rule amendments related to unbundled legal services. Judge Dawson seconded.
A member inquired about the meaning of the language on page 143, lines 68-70: "An attorney filing a pleading, written motion or other paper outside the scope of the limited appearance enters an appearance for the purposes." A member responded that, for example, a lawyer who does the pleadings under a limited appearance and later does a motion for summary judgment would not be making a general appearance by filing the motion but instead a second limited appearance.
A member pointed out a typographical error on page 138, line 89. By unanimous consent, the error was corrected.
The Committee addressed the proposed language on page 143, lines 64-70. A member asked what the opening reference to the Rules of Professional Conduct meant. A member responded that it had been questionable under the conduct rules whether a lawyer could perform a limited representation. The member said the conduct rules were amended to allow for limited representation.
A member said that there should be a cross-reference in Rule 11 to the appropriate conduct rule. A member suggested the conduct rule reference should be in the rule text itself.
Mr. Plambeck MOVED to insert "Rule 1.2 of" on page 143, line 64, before the reference to the conduct rules. Ms. Ottmar seconded.
A member said that Rule 11 should not reference the Rules of Professional Conduct at all. The member said the conduct rules were not rules of substantive law and violation of
the conduct rules did not create a cause of action. The member said it would be a mistake to reference the conduct rules in the rule text, but they could be referenced in the explanatory note.
Mr. McLean MOVED a substitute motion to delete "To the extent permitted by the North Dakota Rules of Professional Conduct," from page 143, lines 64-65. Judge Greenwood seconded. Motion to substitute CARRIED. Motion as substituted CARRIED.
Mr. McLean MOVED to add a cross reference to N.D. R. Prof. Conduct 1.2 (Scope of Representation) to the explanatory note. Judge Sturdevant seconded. Motion CARRIED.
A member asked whether the rule should be amended to require attorneys to file another notice of limited appearance if they choose to do additional work for a client after filing an initial notice of limited appearance. The member suggested that if a lawyer went beyond the scope of an initial limited appearance, the lawyer should be considered to have made a general appearance. The member said the language of the draft proposal might allow a lawyer to do a considerable amount of work for a client under a single notice of limited appearance.
Judge Nelson MOVED to amend the language at page 143, line 70, to replace "enters an appearance for the purposes of the filing" with "enters a general appearance." Mr. Boschee seconded.
A member said if an attorney files a limited appearance and then goes beyond the scope of the appearance, the attorney should be considered to have made a general appearance.
A member said that the intent of the proposal is to encourage attorneys to make limited appearances and to give them assurances that they will not be stuck with the client for the entirety of the case. The member said that adopting the language of the motion would make attorneys more wary about entering into limited appearances.
The member said that many self-representing litigants are representing themselves not because they cannot afford a lawyer but because they do not trust lawyers. The member said the language of the motion may be bad for clients because they may not like the idea of suddenly having a lawyer when they did not want one.
A member replied that the proposal as it stands would allow a lawyer to enter a limited appearance for a client and to do one thing, then another, then another. The member said that this would cause the others involved in the matter (and the court) to wonder about whether
the lawyer is representing the client or not. The member said attorneys should be required to file a notice of limited appearance every time they do something beyond the scope of the original limited appearance.
A member said the motion language does not state that new notices of limited appearance may be filed in a case; instead, it suggests that any appearance beyond a first limited appearance is a general appearance.
A member said it would make sense to require an attorney making a subsequent limited appearance to file a new notice of limited appearance so that everyone involved in the matter could understand the nature of the attorney's representation.
A member said that the Committee's discussions seemed to assume that an attorney would file a notice of limited appearance only when filing some other document. The member asked where the notice would get filed if the party had not filed the case yet. The member also wondered whether the attorney would need to file a notice if, in the middle of an ongoing case, a pro se party asked the attorney to write a letter seeking a settlement. Such a letter would not be filed. The member said the proposal as written seemed to require filing a notice only when the attorney was acting also to file a paper with the court.
Judge Foughty MOVED a substitute motion to delete the sentence at page 143, lines 68-70. Ms. Ottmar seconded.
A member said that the Committee should take a position on what happens if an attorney, either inadvertently or intentionally, moves beyond the scope of an initial limited appearance. The member said the attorney should be protected from inadvertently making a general appearance. The member said removing the sentence would remove guidance on what happens when an attorney moves beyond the scope of a filed limited appearance.
The member said there was a possibility once a lawyer gets involved in a case that the opposing party and the court might welcome the lawyer becoming more involved because the lawyer may be easier to deal with than an unrepresented litigant.
Judge Greenwood MOVED a substitute motion to amend the sentence at page 143, lines 68-70 to conclude: ". . . for the limited purposes of the subsequent filing." Judge Sturdevant seconded.
A member said that if there is a limited appearance entered for one filing, the proposed language would allow the attorney to make a limited appearance for one additional filing. A member said the proposed amendment would also make clear that the attorney's
subsequent appearance is limited to the subsequent filing.
The motion to substitute CARRIED.
Judge Nelson MOVED a substitute motion to change the proposed language to "for the limited purposes of that filing." Judge Greenwood seconded. Motion to substitute CARRIED.
Motion as substituted CARRIED.
Mr. Plambeck MOVED to delete the term "file" on page 143, line 65, and replace with "make." Judge Foughty seconded.
A member asked why "make" was a preferable term. A member replied that under North Dakota's system of commencement by service, a long time might pass before anything was on file with the court. Members said that additional amendments would need to be made to the proposed language if the motion carried.
The motion CARRIED.
Mr. Boschee MOVED to insert "serving or" before the term "filing" on page 143, line 69. Judge Dawson seconded.
A member said that an attorney might participate in a case in a limited way and not serve or file anything, just acting as a questioner at a deposition, for example. The member said this did not appear to be covered in the proposal or any of the amendments.
Mr. Sturdevant MOVED a substitute motion to replace "filing" on page 143, line 69, with "appearing or serving." Mr. McLean seconded. Motion to substitute CARRIED. Motion as substituted CARRIED.
Judge Sturdevant MOVED to delete "file" on page 143, line 70, and replace with "act." Ms. McLean seconded. Motion CARRIED.
A member said that if an attorney makes a limited appearance, it is important that the opposing party understand what the attorney's role is. The member said that the changes made to the proposal still had not made it clear what sort of notice an attorney showing up at a deposition or settlement conference to make a limited appearance would need to give. Could the attorney provide notice verbally at the event? The member said it was important for the court and the other parties to be informed of the nature of an attorney's appearance.
A member asked whether a written document should be required from the attorney making a limited appearance so there would be no ambiguity about the lawyer's role. A member asked whether there should also be a written statement in all documents prepared by a lawyer making a limited appearance indicating the lawyer was acting in that capacity when the document was prepared.
A member suggested that a writing requirement be inserted into the proposed limitation appearance provision in Rule 11.
Judge Geiger MOVED to add language on page 143, line 66, "by filing an appearance." Ms. Ottmar seconded.
A member pointed out that the Committee had been working to eliminate the word "filing" from the Rule 11 proposal. A member responded that the Committee had improved the proposal by eliminating the previous references to filing, but that adding a new reference to filing was now necessary to state the method used to make a limited appearance, i.e., by filing a document.
A member said that service should be enough and that filing of the appearance should not be required. The member said there should be a real piece of paper that states the limited purpose of an attorney's appearance. The member said that limited appearances were needed the most in domestic relations cases. A party may seek to hire a lawyer to handle the settlement negotiations. The member said the Committee should make it easy for the parties to do this and not require them to pay a filing fee so a lawyer can make a limited appearance at a negotiation.
A member said that in the domestic relations area, it is very important that all parties know what role a lawyer who makes a limited appearance is going to play in the case. The member said if the lawyer served a written document stating the extent of the limited appearance, this would let everyone know that lawyer's role.
By unanimous consent, the motion was amended to replace "filing" with "serving."
A member said if the parties want to hire an attorney to negotiate a settlement, the attorney does not need to act under Rule 11: the parties can contract with the attorney and the attorney can do the required work. The member said that Rule 11 seemed more orientated to proceedings that also involved the court, with pleadings and papers and motions.
A member responded that while pleadings and motions are filed with the court, the rule also covers other papers signed by an attorney. The member said these could include
a letter or settlement agreement, which are documents that may not be filed.
The Chair attempted to state the consensus of the Committee. The Committee agreed that if an attorney was making a limited appearance in a matter there had to be a written document precisely stating the scope of that appearance. This document had to be served on the other parties, regardless of whether the case was filed with the court. This document had to be filed with the court once the case was filed so that the court could understand how the attorney was connected to the matter.
Mr. Plambeck MOVED to substitute by amending the pending motion to delete "a limited appearance," substitute "a notice of limited representation," and substitute the word "notice" for "appearance" on page 143, line 66. Judge Geiger seconded. Motion to substitute CARRIED. Motion as substituted CARRIED.
A member said that the provision needed to be cleaned up to make the use of the terms "limited appearance" and "notice of limited representation" consistent. A member said that North Dakota case law had transformed "appearance" into a term of art most often associated with default judgment cases.
A member said that possibly a separate section could cover limited representation in cases that had not been filed. A member observed that because the Committee had shifted word use in the provision from "filing" to "serving" that it would be appropriate to prescribe who had the burden of filing a notice of limited representation when the case was filed.
A member said that it may be appropriate to require attorneys to include a reference to the rule in their notices of limited representation so that there would be a signal that they were proceeding under this rule.
A member had a question about the proposed amendments to Rule 5, which stated that service upon the attorney performing a limited representation was not required. The member asked whether this meant that all documents would be served on the unrepresented party, not on the attorney or attorneys performing limited representation. The Committee agreed that service should be on the party not the attorney.
A member said that Staff could be assigned to review the amendments and redraft as needed.
Judge Dawson MOVED to refer the unbundled legal services rules back to Staff to review the language for consistency. Mr. Dunn seconded. Motion CARRIED.
FORM 9, N.D.R.Crim.P. - APPENDIX A (PAGES 170-194 OF THE AGENDA MATERIAL)
Staff explained the Committee had received a request to amend Form 9. Staff suggested the Committee might want to conduct a general review of the form.
Judge Dawson MOVED to adopt the proposed amendments to Form 9. Judge Geiger seconded.
Judge Nelson MOVED to delete "$36.00" on page 175, line 70, and replace with a blank and to delete "$50.00"on page 176, line 73, and replace with a blank. Judge Sturdevant seconded.
A member said the amount of the payments required in these lines had increased and that a blank should be substituted so that the form does not have to be amended when an amount changes.
A member said it would be preferable to put the correct amounts in the form so that courts would not have to write in the number. A member replied that courts could make up their own forms with the correct amounts already inserted but that the amount should be blank on the model forms.
Judge Kleven MOVED to delete page 175, line 67, and to create a new paragraph 18 reading: "You shall pay restitution in the amount of $____ as follows__________. The total amount of this obligation shall be paid prior to the end of probation." Judge Dawson seconded.
A member said that the form said restitution was to be paid to the clerk. The member said some courts have the state's attorney handle restitution rather than the clerk. A member said with supervised probation in some districts, the probation department collects all funds due from the probationer and forwards the money to the appropriate agency.
A member said that it would be easier to remove the language on page 175, line 61, referring to the clerk of court than to remove a paragraph and rewrite it.
By unanimous consent the motion was substituted to delete "to the clerk of court" from page 175, line 61, and to leave the form's other language unaltered.
A member said that if people do not pay the fine right away, there is usually some sort of payment agreement that specifies who the fine is to be paid to, so it is appropriate to remove the language. The member also said this form could be used for unsupervised probation so payments would not necessarily be made to a probation officer.
The motion as substituted CARRIED.
By unanimous consent, the Committee directed Staff to renumber the form to reflect the amendments.
A member pointed out that the language of the form was inconsistent. Some provisions provide directions by using "you shall" while others state "it is a violation of probation" to do a certain act. The consensus of the Committee was that a single form should be used throughout the document and that the positive form "you shall" was preferable.
A member said that if the form was going to be rewritten, it would also be useful to have a sex offender version of the form and another version without the sex offender conditions. The member said there should be two forms.
A member said that the form of the new provision allowing waiver of the firearms prohibition was awkward. The member said there should simply be a check box on the firearms prohibition.
A member responded that the court has an obligation to consider separately whether the firearms prohibition condition should be waived because it is a statutory requirement except under limited circumstances. A member responded that a court that did not check the box would have considered the circumstances and waived the condition.
A member asked whether there was a condition on the form that allowed the court to require community service. Committee members agreed that there should be a condition added to reflect the new community service fee and to allow a community service requirement to be stated.
Judge Dawson MOVED to refer the form back to Staff to redraft and separate into two forms. Judge Nelson seconded. Motion CARRIED.
PRIVACY PROTECTION FOR FILINGS MADE WITH THE COURT (PAGES 195-235 OF THE AGENDA MATERIAL)
Staff explained the federal government had finalized work on rule amendments
designed to provide privacy protection for filings made with the courts. Staff presented a series of rule amendments designed to incorporate the federal changes into the North Dakota rules.
Judge Sturdevant MOVED to adopt the proposed rule amendments related to privacy protection. Ms. McLean seconded.
A member asked why there was a restriction on giving a full address in proposed N.D.R.Crim.P. 49.1 and no similar provision in proposed N.D.R.Civ.P. 5.1. Staff explained that the proposed rules were based on the federal rules and that the information restrictions in the federal criminal and civil rules were slightly different.
A member said that it is sometimes necessary to include an address in a criminal case, especially when stating where the crime occurred. A member said that addresses also must be included in protection orders.
The Chair explained that there has been greater interest in records privacy since the Court started providing online access to district court case records. The Chair said that street addresses and dates of birth had been posted when these records first went online, but these were removed based on comments from users.
The Chair said the Court Technology Committee decided that city and state should be posted but not the street address. The Court Technology Committee agreed initially that posting birth dates would facilitate identity theft, but after the birth dates were removed, the court received complaints from people trying to cross-check records. Limited access to birth dates was restored allowing people who already possess birth date information to confirm that a given individual was born on that date.
Staff explained that the Committee discussed adding a birth date redaction requirement when the privacy protection rules were drafted, but that the Committee had rejected this proposal.
A member said the idea of having one privacy protection rule in the Rules of Court rather than three rules in the procedural rules was appealing. Staff said that the federal rules make distinctions between protection of different kinds of information in civil and criminal cases. A member said this could be accounted for in a single rule.
The Chair pointed out that the Committee had to recognize competing goals. On the one hand, North Dakota tries to parallel the federal rules unless it does not agree with the federal rules. On the other hand, having the privacy protection guidance in one rule would
be more convenient.
A member asked whether it would create confusion if the North Dakota rule did not follow the federal rule. A member responded that cross-referencing between the federal rules on the North Dakota rules would be more difficult.
A member asked who would be reviewing compliance with the privacy protection rules. Members responded that the clerk was not responsible and that compliance with the rules was the responsibility of the person preparing the documents.
Judge Nelson MOVED to send the rule to Staff to put all the privacy protection requirements in a single rule. Mr. Boschee seconded.
A member said having the requirements in a single rule would make it easier to revise and update the requirements in the future. The member said there would also be only one place anyone would need to look to refer to the requirements.
Motion to refer rule back to Staff CARRIED.
RULE 27, N.D.R.Civ.P. - DEPOSITIONS BEFORE ACTION OR PENDING APPEAL (PAGES 236-268 OF THE AGENDA MATERIAL)
Staff explained that a Texas law professor had recently completed a study of the usefulness of pre-litigation depositions and he was encouraging states across the country to consider wider use of such depositions. Staff presented the Committee with alternate rule drafts that would ease North Dakota's rules on pre-litigation depositions.
Judge Dawson MOVED to adopt the proposed amendments to Rule 27. Judge Geiger seconded.
A member said the alternate draft of the rule, which was based on Texas' rule, contained more safeguards and required the petitioner to present more justification to the court for use of pre-litigation discovery. The member said the alternate draft also required the court to make findings before allowing pre-suit discovery.
A member said that a rule allowing pre-suit discovery to investigate a potential claim should not be adopted. The member said this would encourage fishing investigations into personal information. The member said the North Dakota law allowed potential claimants six years to figure out if they have a claim against someone and that this was enough.
A member pointed out that claimants were subject to sanctions under N.D.R.Civ.P. 11 for making claims that were not well-founded. A member replied that it was possible that pre-suit discovery could reduce claims that were not well-founded, but that there was a substantial possibility for misuse of pre-suit discovery. A member said that N.D.R.Civ.P. 11 only requires that claims have a reasonable and good-faith basis, which is not a high hurdle to reach without pre-suit discovery. A member said that there was no one calling for pre-suit discovery in North Dakota.
A member replied that there is growing confusion about the status of certain parties, distributors being misidentified as manufacturers, for example. The member said some companies that traditionally manufactured products now sell products manufactured elsewhere, but this fact cannot be determined without the use of discovery. The member said parties should be allowed to find out who the manufacturer of a product is before going to the expense of starting a lawsuit.
A member asked how having pre-suit discovery would save expense in a product liability case. A member replied that a simple interrogatory could be sent to determine party status or where a product came from. A member said that there was a real danger of fishing expeditions taking place if pre-suit discovery is allowed. The member said discovery is already costly enough without expanding its scope.
A member said if North Dakota were to allow pre-suit discovery, it would be useful to have a rule like the Texas rule, which has specific requirements a party must meet before pre-suit discovery can be had.
A member wondered how the standards of discovery would change if the proposed rule was adopted. The member said that courts generally allow parties to obtain the discovery material that they request. The member asked whether courts would place more stringent limits on materials sought pre-suit. The member said courts would have to use a different mind set and parties might not be able to obtain all the material they desire.
A member said that the change sought under the proposal was a modest one. The member said that discovery in general is getting horribly expensive and that being able to find out early whether there is a claim in a given case might make more sense. A member commented that it would save money for parties to bark up the right tree from the start.
A member said that pre-suit discovery would not solve the problems cited because a plaintiff in a product liability case, for example, would not just drop the case upon finding out the supposed manufacturer was not the manufacturer. The plaintiff would seek a new target and no one would experience a reduction in discovery costs. The member said a better
alternative was a simple sit down conference with the attorney for the initial target defendant to see whether it is an appropriate defendant.
Judge Nelson MOVED a substitute motion to have the Committee consider adoption of the alternate (Texas) draft at pages 242-249. Mr. Dunn seconded.
A member said that the alternate draft offered more safeguards to ensure pre-suit discovery was not abused. A member replied that the judges had considerable discretion under the original proposal to enter protection orders or set other limits on pre-suit discovery.
Motion to substitute was DEFEATED.
A member said that the potential harm of adopting a rule expanding the scope of pre-suit discovery seemed to outweigh any benefits to be gained from the rule.
The motion to adopt the proposed amendments to Rule 27 was DEFEATED.
The Chair thanked the Committee members and Staff. The meeting adjourned at approximately 11:30 a.m., on October 12, 2007.
Michael J. Hagburg