MINUTES OF MEETING
Joint Procedure Committee
April 28-29, 2011
TABLE OF CONTENTS
Rule 65, N.D.R.Civ.P., Injunctions 2
Rule 12, N.D.R.Juv.P., Discovery 8
Rule 41, N.D. Sup. Ct. Admin. R., Access to Court Records 9
Rule 54, N.D.R.Civ.P., Judgment; Costs 13
Rule 8.13, N.D.R.Ct., In Chambers Interview of Child in Domestic Relations Case 13
Rule 41, N.D.R.Crim.P., Search and Seizure 17
Rule 3, N.D.R.Crim.P., The Complaint; Rule 5, N.D.R.Crim.P, Initial Appearance Before the Magistrate; Rule 7, N.D.R.Crim.P., The Indictment and the Information 17
Rule 4, N.D.R.App.P., Appeal - When Taken 18
Rule 24, N.D.R.App.P., Supplemental Brief of Indigent Defendant; Rule 32, N.D.R.App.P, Form of Briefs, Appendices and Other Papers; Rule 40, N.D.R.App.P., Petition for Rehearing 18
Rule 65, N.D.R.Civ.P., Injunctions 20
Rule 3, N.D.R.Crim.P., The Complaint; Rule 5, N.D.R.Crim.P, Initial Appearance Before the Magistrate; Rule 7, N.D.R.Crim.P., The Indictment and the Information 20
Rule 26, N.D.R.Civ.P., General Provisions Governing Discovery 20
Rule 6.4, N.D.R.Ct., Exhibits 24
Rule 0.0, N.D.R.Ct., Interstate Depositions and Discovery 25
Rule 29, N.D.R.App.P., Brief of an Amicus Curiae 25
Rule 804, N.D.R.Ev., Hearsay Exceptions; Declarant Unavailable 26
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on April 28, 2011, by the Chair, Justice Mary Muehlen Maring.
Justice Mary Muehlen Maring,
Honorable Laurie Fontaine
Honorable John Greenwood (Thursday only)
Honorable William A. Herauf
Mr. Galen J. Mack
Mr. Richard H. McGee
Mr. Steven W. Plambeck
Mr. Kent Reierson
The Chair welcomed a new member, Judge Steven Marquart, and set out the schedule for the meeting.
APPROVAL OF MINUTES
Mr. Quick MOVED to approve the minutes. Judge Herauf seconded. The motion to approve the minutes CARRIED unanimously.
RULE 65, N.D.R.Civ.P., INJUNCTIONS (PAGES 33-58 OF THE AGENDA MATERIAL)
Staff explained that Rule 65 came before the Committee at the January 2011 meeting when the Committee discussed and made amendments to a proposal to amend Rule 65 to supersede North Dakota's injunction procedure statutes. After the January meeting, the Rule 65 subcommittee reviewed the Committee's amendments and drafted further amendments (intended to clean up the proposal) for the Committee to consider.
A member asked whether the terminology "provision injunction moving party" was obtained from another source or created by the subcommittee. The member suggested that "the party moving for a provision injunction" would be preferable.
Judge McLees MOVED to amend at page 34, lines 9-10, to read "party moving for a provisional injunction . . . ." Judge McCullough seconded. Motion CARRIED.
Judge McLees MOVED to add commas to the sentence at page 34, lines 12-15. Judge Herauf seconded.
A member said that, even with the additional commas, the language of the sentence was confusing. A member said that the intent was to make clear that if a motion is granted late Friday, the motion and supporting documentation does not need to be filed until the next day the courthouse is open. A member asked why it could not say "the next working day." A member said that courthouses were sometimes closed on days other than Saturday, Sunday and holidays such as when there is a blizzard. The member said the language was intended to account for such contingencies.
By unanimous consent, the motion was amended so that the sentence beginning on page 34, line 12, would read "The moving party must file the motion, proposed complaint, and other supporting documents no later than the next court business day."
The motion CARRIED.
Judge McLees MOVED to change "provisional-injunction moving party" to "the party moving for a provisional injunction" throughout the rule. Judge Marquart seconded. Motion CARRIED.
A member asked whether the addition of "or after" on page 35, line 38, was intended to allow the provisional injunction to remain in place after the preliminary injunction hearing. A member said this was necessary to allow the judge to rule on a preliminary injunction request without allowing the provisional injunction to expire in the interim.
Mr. Dunn MOVED to add "was" before "issued" at page 36, line 52. Judge McLees seconded. Motion CARRIED.
A member pointed out the language beginning at page 38, line 82. The member noted that the provision allowed a party to ask to file a reply brief when moving for a preliminary injunction. The member questioned whether it was necessary to make allowances for a reply brief at all when a provisional injunction was in place. The member said that under the proposed language, allowing a reply brief would delay a decision on the preliminary injunction.
A member said that a reply brief would only be allowed with good cause when a provisional injunction is in place, and timing is a factor to consider in determining whether there is good cause. The member said that if a party moves for a preliminary injunction without first obtaining a provisional injunction, the right to a reply brief is automatic. The member said this was designed to be an incentive to encourage parties to move for a preliminary injunction (with full notice to the other party) rather than seek a quick provisional injunction.
Judge McLees MOVED to amend the language on page 38, lines 82-84, to read: "Unless good cause is shown, the court must dissolve the provisional injunction if the party that obtained it does not timely serve the preliminary-injunction motion, supporting brief, and supporting materials." Ms. Ottmar seconded. Motion CARRIED.
A member clarified that a provisional injunction will expire automatically after 28 days if the party who obtained it does not take some action to extend it. In addition, the court can dissolve the provisional injunction earlier if the party does not follow up by timely seeking to obtain a preliminary injunction.
Mr. Dunn MOVED to add "was" before "issued" on page 41, line 142. Judge Herauf seconded. Motion CARRIED.
Judge McLees MOVED to add "was" before "first" on page 40, line 122. Judge McCullough seconded. Motion CARRIED.
A member asked whether language about payment of a party's costs when the party is wrongfully enjoined should be clarified.
Judge McLees MOVED to amend at page 42, line 158, to read "if the enjoined party is found to have been wrongfully enjoined." Mr. Boschee seconded.
By unanimous consent, the motion was amended to read "if that party is found to have been wrongfully enjoined."
A member said that most of the injunctions subject to the proposed rule were defined as "interim" injunctions. The member said that "interim injunction" was not defined by the rule. The member said that the rule made several changes in terminology that would be different from what the Bar and the judiciary were accustomed to dealing with. The member suggested that, if the Committee decides to go away from the old terminology, for example using "provisional injunction" instead of "temporary restraining order," there needs to be language in the explanatory note explaining the new terminology.
A member observed that temporary restraining orders would still exist in family law matters under the specific rules that apply to those cases. A member said that language could be drafted for the explanatory note to explain the new terminology in the rule.
The Chair suggested that staff could prepare proposed explanatory note language and present it to the Committee during the Friday session. The Chair asked whether members had any additional suggestions for explanatory note language.
A member observed that the proposed rule referred to a "reasonable time" in several places. The member suggested that the "reasonable time" references in the proposal be made more specific.
Judge McLees MOVED to change all the instances of "reasonable time" to "a reasonable time established by the court." Mr. Hoy seconded. Motion CARRIED.
Judge McLees MOVED to add "an" before "official" at page 42, line 165. Judge Herauf seconded. Motion CARRIED.
By unanimous consent, an "a" was added before "negotiable" at page 42, line 169, and "bonds" was replaced with "bond."
By unanimous consent, the word "that" was removed at page 41, line 140.
The motion to recommend adoption of the proposed changes to Rule 65 as amended
The Committee then addressed the alternative language proposed to be inserted at page 40 as subdivision (f).
Mr. Boschee explained that the subcommittee's proposal considered at the January 2011 meeting had contained a provision that would have barred presentation of a motion for an interim injunction to multiple judges. Mr. Boschee said the purpose of the provision was to prevent a party from presenting an injunction motion to a second judge after an initial judge had denied it. Mr. Boschee said that Committee members had raised concerns about what would happen under the proposed language if the initial judge was unavailable to continue in the matter for a legitimate reason.
Mr. Boschee said that the proposed alternative language would require that a party provide information to the judge about whether a motion for injunction had been presented previously to another judge. This would allow the judge considering the motion to understand its history. A member said that this approach makes more sense than barring a motion from being presented to a second judge.
Judge McCullough MOVED to adopt the following language for a new subdivision (f) on page 40: "(f) Previous Denial. The moving party must state in a motion for a provisional or preliminary injunction, or in the accompanying brief, or orally to the judge ruling on the motion, whether any other judge has denied the motion or a similar motion based on the same transaction or occurrence or series of transactions or occurrences, and if so, the identity of the judge or judges who denied the motion. " Judge McLees seconded.
A member asked why it was necessary to list so many alternative ways for the moving party to provide the motion history to the court. A member said that the history should be disclosed in writing because a judge may not have a reporter or recorder at a provisional injunction proceeding. A member suggested that this history simply be provided in the motion itself.
Mr. Dunn MOVED to amend the proposed subdivision (f) language to specify that the history must be stated in the motion and to delete the alternative methods. Judge Fontaine seconded. Motion CARRIED.
By unanimous consent, "a motion" was changed to "the motion."
Judge McLees MOVED to amend proposed subdivision (f) to begin "A party moving for a provisional or preliminary injunction must state in the motion . . . ." Judge Herauf
The motion to add proposed subdivision (f) to the Rule 65 proposal CARRIED.
The Committee next considered proposed alternative language at pages 41-42 for subdivision (h) on security.
Judge McCullough MOVED to adopt the first alternative at pages 41-42, lines 155-158. Mr. Quick seconded.
A member said it was preferable for an injunction not to be enforceable until after security is provided. A member asked what would happen if a party needed an injunction immediately on a weekend when it was not possible to make arrangements for security. A member said the amount of security is determined by the court and the court could decline to require immediate posting of security in such an emergency case.
A member asked about the meaning of "wrongfully enjoined" as used in the proposed alternative. The member asked whether every injunction that does not ultimately prevail is wrongful. A member suggested that if a party sustains damages during the period when they are enjoined, and the injunction does not become permanent, they can seek damages.
A member asked whether "improperly enjoined" could be a better term. A member said that "wrongfully enjoined" is the term used in the federal rule, so there is case law explaining situations when a party can recover damages. A member said that an injunction is a severe remedy, and the intent of the state's injunction statutes is to allow parties who are enjoined to recover damages when the party obtaining the injunction does not ultimately prevail.
Mr. Boschee MOVED to amend at page 42, line 158, to delete "that party is found to have been wrongfully enjoined" and replace with "the court ultimately decides the moving party was not entitled to the injunction." Mr. Dunn seconded.
A member said that "ultimately" was not necessary. A member said that the term was suggested to cover the situation when a court initially decided to grant the injunction and, at some later point changed its mind and decided that the injunction was not appropriate. It would be at that "ultimate" point damages could be sought.
The motion to amend CARRIED.
The motion to include the first alternative on security as part of the Rule 65 proposal
The Chair said the Committee would take up Rule 65 again at the Friday session to consider additional explanatory note language.
RULE 12, N.D.R.Juv.P., DISCOVERY (PAGES 59-68 OF THE AGENDA MATERIAL)
Staff said that Rule 12 came before the Committee at the September 2010 meeting for consideration of a proposal from Assistant Cass County State's Attorney Kim Hegvik to amend the rule's provision on discovery in delinquency and unruly child proceedings. Her proposed amendment would limit disclosure "to the extent not privileged or prohibited by statute, rule, or regulation." The Committee instructed staff to research the proposal further. Staff explained its research, reviewing the background of the rule section that Ms. Hegvik sought to amend and Ms. Hegvik's rationale for the proposed changes.
Judge Marquart MOVED to recommend adoption of the proposed amendments to Rule 12. Ms. McLean seconded.
A member said that discovery in adult criminal cases was not limited by the kind of restriction proposed for the juvenile discovery rule. The member said that the government should not be allowed to serve as a gatekeeper of its own disclosures, deciding what to provide and what not to provide under its own interpretation of privilege and statute. A member said if the government knows and potentially could use information, the defense is entitled to have the information.
A member said that even if the government knows about something that it does not intend to use, it should not be allowed to keep it a secret and be allowed not to disclose it to the defense. The member was involved in a case in which two high school students had exchanged a note that the school interpreted to contain a bomb threat. The school commenced expulsion proceedings against both students. The member said that one student's statements at the expulsion proceeding became an issue in a subsequent juvenile case. The student gave different versions of the events to the investigating officer and to the school board. The state then charged the other student in juvenile court, and when the student who had given the different stories testified in a deposition, the student gave another version of the events. Finally, in juvenile court, the student gave a fourth version of the events.
The member said that the defense wanted to examine the student's testimony in the expulsion case and got a court order to obtain it, even though such testimony is normally confidential. The member said that the proposed amendment to Rule 12 would not have prevented the defense from getting the court order, because it obtained the testimony from the
A member said that if the state or defense in a juvenile delinquency or unruly child matter objects to disclosing material due to a claim of privilege or confidentiality, the appropriate response is to make a motion and have the court address the claim. A member said, on the other hand, that if the proposed amendment was adopted, the party seeking discovery could object to a claim of privilege and seek to have the item disclosed. A member said that it would be difficult to make such a claim if the party resisting discovery did not disclose the existence of the item allegedly protected by privilege or statute. A member said that if a party believed an item is protected from disclosure, the party should be required to provide an explanation of the basis for the non-disclosure, not simply decide on their own not to disclose the item.
The motion to recommend adoption of the proposed amendments to Rule 12 FAILED on a 2-13 vote.
RULE 41, N.D. Sup. Ct. Admin. R., ACCESS TO COURT RECORDS (PAGES 69-104 OF THE AGENDA MATERIAL)
Staff explained that Rule 41 came before the Committee at the September 2010 meeting when the Committee discussed access to records of dismissed criminal charges. Based on the September discussion, staff prepared proposed amendments to Rule 41 that would allow people with dismissed criminal charges to apply to have Internet access to those records restricted.
Mr. Quick MOVED to recommend adoption of the proposed amendments to Rule 41. Mr. Hoy seconded.
A member said that it would be better if dismissed criminal charges and related records were automatically removed from the Internet. The member said it would be a burden to parties and the courts to require motions to have these records removed from Internet access. The member said that the courts have received many requests to remove records from dismissed criminal cases and other matters when requested relief, such as a request for a disorderly conduct restraining order, was not granted.
A member said dismissed charges should not be displayed on the Internet and there should be a disclaimer on the District Court records site that indicates that records of dismissed charges are not disclosed on the site. The member said the site should guide people looking for information about dismissed charges to appropriate resources such as the attorney general's office.
A member said the reason having records on the Internet creates problems for people with dismissed charges is because of the easy access. The member said people look up records on the Internet who would never have bothered to go to the courthouse to look up records.
A member said that criminal attorneys encourage their clients to plead guilty to charges in exchange for deferred sentences, because these are later sealed. Charges that are dismissed are not sealed.
The Chair said that the Committee could recommend approval of the proposed rule change to give people a tool to use to have their dismissed charges removed from the Internet. The Chair said the Committee could also recommend to the Supreme Court that, as a matter of policy, records of dismissed criminal charges not be displayed on the Internet. The Chair said that the Committee also needs to provide advice to the Court Administrator about what should appear on the Internet display when someone researching criminal records looks up the record of a person who had a dismissed criminal charge that had been removed from the Internet.
A member said that dismissed criminal charges should not be displayed at all in response to an Internet search. The member suggested the Court should post a notice on the Internet stating that dismissed criminal charges are not displayed on the District Court search site.
A member said that people have been denied jobs and housing because someone looked them up on the Internet and found a dismissed criminal charge. The member said that future dismissed charges should not be listed on the Internet and there should be a means for people who have dismissed charges already listed on the Internet to have those matters
A member said that in Minnesota, the Odyssey system Internet display was set up to give the charge and disposition on the first screen. The member says this still associates a person with a criminal charge, even though it is clearer that the charge is dismissed.
A member said that the proposed rule change seemed like a good approach to allow people to seek to have dismissed charges and related items removed from Internet display. The member said it was a good mechanism.
A member said that, if the Committee is going to recommend to the Court that dismissed charges automatically be removed from display on the Internet, the proposed rule change should be amended so that it is limited to items not subject to automatic removal from the Internet. A member replied that it was not certain that the Court would decide to automatically remove all dismissed items already in the system, so it would be useful to have a mechanism for people to seek removal of these items. A member said that having the rule would also give judges information that the types of items listed in the rule are to be treated differently than other items that are part of the Internet record.
Judge Schneider MOVED to amend at page 80, line 205 to strike "in its discretion." Judge McCullough seconded. Motion CARRIED.
A member said that one way to save work for people seeking to have records removed from Internet display under the proposed rule would be to make available a motion form that people could fill out and submit to the clerk. The Chair said that the Court Administrator had asked that such a form be developed so that motions could be made easily.
The motion to recommend amendment of Rule 41 to include the proposed language allowing people to request removal of specified items from Internet display CARRIED.
Judge McCullough MOVED to recommend to the Odyssey Operations Group that they develop a policy and procedure to categorically remove records of requests for restraining or protection orders that were requested but never granted and the other electronic court record items listed on page 80, lines 207-210, from Internet access. Judge Herauf seconded.
A member raised a concern about not displaying dismissed protection order requests. The member said a protection order can be in place for a period of time and then dismissed and such an order should still be displayed. A member said the motion language was intended to restrict display only when there has been a request for an order and the request has never
A member said that orders that are granted and then dismissed soon after should not be displayed. A member replied that the proposed language for the rule would allow parties to come in and seek to have the order removed under the balancing test.
A member said that domestic violence protection orders are not displayed now and would not be in the future. The member said the motion would apply instead to disorderly conduct restraining orders.
The motion CARRIED.
Judge Fontaine MOVED to recommend to the State Court Administrator that, if the recommended policy on non-display of certain records is put in place, a disclaimer be posted on the District Court records site indicating types of records not displayed on the site. Judge Herauf seconded.
A member said that a different approach would be to have the language "record not accessible by the Internet" come up when a search is made for one of the types of records specified by the motion. A member said that posting the disclaimer on the search page, on display even before any search is run, would be a better approach.
The Chair asked whether the proposed disclaimer would come up in response to a specific search. A member said the intent of the motion was that the disclaimer be on the initial search page and that no results would be displayed if the search led to a type of record that was restricted from display.
A member said that a searcher can get a full criminal record for a person in a variety of ways. The member said the search page disclaimer should simply indicate that specific items that might be part of a person's criminal record are not available on the Internet through the District Court search site.
The motion CARRIED.
Staff was instructed to draft a form that could be used by people seeking to have their records removed from display on the Internet under the proposed rule provision. A member said that the form should include a motion on one page and a separate page with the order.
Staff explained that Rule 54 came before the Committee at the September 2010 meeting when the Committee discussed whether courts were entering final judgments in some matters without taking Rule 54(b)'s requirements into account. Based on the Committee's instructions, staff drafted proposed amendments to Rule 54's explanatory note to more fully explain Rule 54(b)'s requirements.
Judge McCullough MOVED to recommend adoption of the proposed amendments. Judge Herauf seconded.
A member said that the proposed amendments appeared to clearly explain Rule 54(b)'s requirements.
The motion to recommend adoption of the proposed amendments to Rule 54 CARRIED.
RULE 8.13, N.D.R.Ct., IN CHAMBERS INTERVIEW OF CHILD IN DOMESTIC RELATIONS CASE (PAGES 116-137 OF THE AGENDA MATERIAL)
Staff explained that Rule 8.13 came before the Committee at the September 2010 meeting. It is a new rule that is designed to establish a uniform procedure for in chambers interviews of children. The Committee discussed the rule proposal at length during the September meeting and staff then crafted a revised draft for the Committee's further consideration.
Judge McLees MOVED to recommend adoption of the proposed new rule. Ms. Ottmar seconded.
A member said that one issue with the proposed language was the requirement that interviews be recorded "unless the parents agree otherwise." The member said that not recording an interview would create problems if the case was appealed. A member said this situation has occurred in actual practice and does create problems when there is no record for the court to look at on appeal.
A member said that an informal poll of family law section members showed support for having a uniform rule on in chambers interviews.
A member said that the proposal's requirement for both parents' consent is important
A member said the rule's requirements on the confidentiality of the interview transcript should be beefed up so that the parents can be denied all access to the interview.
Ms. Ottmar MOVED to amend the rule to: switch the position of subdivisions (c) and (b); add language to subdivision (d) at page 118, line 14, requiring that, if counsel are not allowed into the interview, that the recording be made available to them; and to add further language to subdivision (d) allowing the district court to elect to restrict access to the recording under exceptional circumstances. Mr. Quick seconded.
A member said that courts are now recording digitally and would have to figure out how to make attorneys a copy of the interview record from the digital file. A member asked whether the court would have to recess while the record is copied and while the attorneys listen to it. A member said that it was likely attorneys would listen to the recording with their clients, which would defeat the purpose of having a private interview with the child. The member said the child might just as well testify in court.
A member asked what information the attorney really needs to know from the interview. The member said the court could provide information on the child's ultimate preference without sharing the entire interview. A member said attorneys need more than just preference information.
A member said one solution would be to amend the rule to provide that attorneys could always come into an in chambers interview. A member said courts that allow in chambers interviews typically allow the attorneys to observe. A member said that courts often require the attorneys to stipulate that they will not give a verbatim report on the interview to their clients. The member said it would be awkward for a judge to conduct a private interview in chambers with a child and then hand a recording of the interview to an attorney to listen to with the client.
A member asked whether attorneys would prefer to be present to observe the interview in most cases. A member said this is the best situation because an attorney who is sitting in the interview would not need a transcript. A member said that having the transcript is important if the attorneys are going to be excluded from the interview, especially in light of the current widespread practice of judges conducting an interview and giving only a brief
A member said that parties sometimes request that no one but the judge be present with the child during an in chambers interview. The member said the rule could be amended to require judges to allow attorneys into the interview unless waived by the parties.
Judge Fontaine MOVED to amend the motion to amend the subdivision on presence of counsel to read: "The district court must allow counsel to be present during the in chambers interview and may allow counsel to ask or submit questions." Ms. Ottmar seconded.
The Committee discussed the proposed "exceptional circumstances" restriction on release of the interview transcript. A member asked for a definition of "exceptional circumstances." A member proposed that the term should be expanded to "exceptional circumstances that may endanger the child." A member asked how the court would know about "exceptional circumstances that may endanger the child" except by getting the information from the parents.
A member said that the court can often learn about the possibility of danger to the child, and the possible need to restrict access to the transcript, during the interview itself. A member said this can be a problem if the attorneys are present.
A member asked whether the proposed language of subdivision (d) might encourage appeals because it allows the court to deny parents access to an in chambers interview when no appeal is taken, but allows access when a case is appealed.
The motion to amend the motion CARRIED.
Judge McCullough MOVED to amend the motion to replace the proposed language in the first two sentences of subdivision (d) with: "In the event of an appeal, the district court retains jurisdiction to determine whether exceptional circumstances exist which endanger the safety of the child. If the court finds exceptional circumstances, the interview transcript will be available only to a reviewing court." Judge Herauf seconded.
A member asked whether the attorneys should have access to the transcript when there are exceptional circumstances. Members practicing in family law said they should not. A member said the attorneys very likely would have been sitting in on the interview.
The motion to amend the motion CARRIED.
A member said that the proposed language would still allow an attorney to obtain a
Judge Schneider MOVED to amend the motion to change the language in the third sentence of subdivision (d) to read: "If no appeal is taken, the district court may deny access to the transcript of the in chambers interview." Ms. Ottmar seconded. The motion to amend the motion CARRIED.
Ms. Ottmar's motion, as amended, CARRIED.
A member asked why, after all the discussion about the importance of having the interview recorded and transcribed, the language of subdivision (b) would still allow the parents to agree that the interview not be recorded. The member said recording the interview should be required. A member said that there may be cases where all the parties think that it is in everyone's best interests that the interview not be recorded.
A member replied that the reviewing court will not be able to assess the interview on appeal absent a record. The member said the best approach is to require that the interview be recorded. Otherwise, the judge, with the parties consent, can consider material that is off the record to make a final decision and that material cannot be reviewed by an appellate court. A member said that judges can make their own choice to record interviews, regardless of whether the parties agree otherwise.
Judge Schneider MOVED to amend subdivision (b) to provide: "A record must be made of the in chambers interview." Mr. Hoy seconded. Motion CARRIED.
Judge Greenwood MOVED to amend the subdivision (b) language to state: "The court must make a record of the in chambers interview." Judge McLees seconded.
A member said that some courts, in rural areas, don't have the ability to move the recording equipment into chambers from the courtroom. A member said that in order to make a record of an in chambers interview, the judge would need to clear the courtroom and conduct the interview there. A member said, as a practical matter, this would be an appropriate solution. A member said the state courts might need to look at providing more equipment.
Judge Fontaine MOVED to add a statement to the explanatory note indicating that parties may waive counsel's presence during the in chambers interview. Ms. Ottmar seconded.
A member asked whether it would be better to refer in the rule and its title to "in camera interview" rather than "in chambers interview" because it would not always be possible to conduct the interview in chambers. A member said that "in camera" and "in chambers" were commonly used to refer to this type of interview. A member said, however, that the language of the proposal requires counsel to be present, which means that the interview could not be "in camera." The Committee decided to retain the term "in chambers" in the rule.
The motion to recommend adoption of the proposed new rule CARRIED.
RULE 41, N.D.R.Crim.P., SEARCH AND SEIZURE (PAGES 138-155 OF THE AGENDA MATERIAL)
Staff explained that Rule 41 came before the Committee at the September 2010 meeting, when the Committee considered whether amendment of the rule consistent with the 2009 amendments to Fed.R.Crim.P. 41 would be appropriate. The amendments to the federal rule deal with the seizure of electronically stored information. The Committee instructed staff to prepare amendments to Rule 41 based on the federal amendments.
Judge Kleven MOVED to recommend adoption of the proposed amendments. Judge Reich seconded.
A member asked whether defense counsel would have any problem with the proposed amendments. A member responded that if law enforcement seizes a computer, the defense would not expect law enforcement to image the computer on the site. A member also said the rule language would allow a judge to specify a time limit on the state's possession of the electronic storage materials.
The motion to recommend adoption of the proposed amendments CARRIED.
RULE 3, N.D.R.Crim.P., THE COMPLAINT; RULE 5, N.D.R.Crim.P., INITIAL APPEARANCE BEFORE THE MAGISTRATE; RULE 7, N.D.R.Crim.P., THE
Staff explained that Reid Brady, an assistant state's attorney for Cass County, proposed that Rules 3, 5 and 7 be amended to allow the information to be used as an initial charging document in criminal cases. Staff said the proposed changes are consistent with recently passed amendments to N.D.C.C. § 29-04-05 and related statutes.
Judge Marquart MOVED to recommend adoption of the proposed amendments. Judge McLees seconded.
The motion to recommend adoption of the proposed rule amendments CARRIED.
RULE 4, N.D.R.App.P., APPEAL - WHEN TAKEN (PAGES 207-222 OF THE AGENDA MATERIAL)
Staff explained that, after considering new federal rules on remand jurisdiction at the September 2010 meeting, the Committee decided not to adopt parallel North Dakota rules. The Committee instead instructed staff to prepare amendments to Rule 4 allowing the Supreme Court to retain jurisdiction during a remand for district court resolution of a motion.
Judge Fontaine MOVED to recommend adoption of the proposed amendments. Mr. Dunn seconded.
The motion to recommend adoption of the proposed rule amendments CARRIED.
RULE 24, N.D.R.App.P., SUPPLEMENTAL BRIEF OF INDIGENT DEFENDANT; RULE 32, N.D.R.App.P., FORM OF BRIEFS, APPENDICES AND OTHER PAPERS; RULE 40, N.D.R.App.P., PETITION FOR REHEARING (PAGES 223-234 OF THE AGENDA MATERIAL)
Staff explained that, during its review of the Committee's annual rules package, the Supreme Court indicated that it wanted the Committee to discuss the reduction of page and word volume amounts allowed for appellate briefs. Staff prepared amendments to Rules 24, 32 and 40 to reduce the allowed size of briefs consistent with the Court's suggestions.
Judge Schneider MOVED to recommend adoption of the proposed amendments. Judge McCullough seconded.
A member asked whether there was a trend toward reducing the length of appellate
The Chair said the length of briefs is a continuing issue and that the Court gets many requests to extend brief length. A member said it is common practice for attorneys to use all the space that they are allowed for briefs. A member said it is likely that the Court will get even more requests for extended length if the brief length limits are reduced.
The Chair said that the Court often receives briefs raising multiple issues when only a few of the issues are meritorious. The Chair said there is a tendency for parties to raise every small point on appeal and fail to focus on the main issues. The Court said there are five justices who have to read thousands of pages of briefs. The Chair also reminded the Committee that the Supreme Court is required to review every case that comes before it and has not used the Intermediate Court of Appeals for more than two years.
A member said that if attorneys try to pick their issues, they will tend to use less brief space. The member said the shorter limits would not be a problem if the Court were willing to extend brief length when necessary. A member said that attorneys try to be as thorough as possible and do not necessarily know what issues and arguments will resonate with the reviewing court.
A member asked how many briefs the proposed new limits would effect. The Chair said that the new limits would probably have an impact in 90 percent of the cases. The Chair explained that parties taking appeals tend to use all the pages allowed. The Chair said that imposing limits would hopefully force attorneys to focus on their strongest issues.
A member said it was likely that, if reduced page limits are imposed, attorneys would continue to try to cover a large number of issues and would support those issues with less discussion and analysis. A member said attorneys typically do not want to give up any issues. A member said that attorneys try to do their best to represent their clients zealously and do not know what issues are going to resonate with the Court. The member said attorneys raise the issues they believe are most significant and they develop those issues within the page limits allowed by the rules. A member said it is unpredictable what issue the Court may decide to focus on.
The motion to amend the rules FAILED on a 5-8 vote.
Mr. Hoy MOVED to instruct staff to conduct research on the issue of brief length in other jurisdictions. Judge Marquart seconded. Motion CARRIED.
The meeting recessed at 5:00 p.m. on April 28, 2011.
April 29, 2011 - Friday
The meeting was called to order at approximately 9:00 a.m. by Justice Mary Muehlen Maring, Chair.
RULE 65, N.D.R.Civ.P., INJUNCTIONS (PAGES 33-58 OF THE AGENDA MATERIAL)
In response to the Committee's request at the Thursday session, staff presented proposed additional language for the explanatory note: "This amended rule introduces some new injunction terminology. Interim injunctions are those that are not permanent. These include provisional injunctions, preliminary injunctions and passing injunctions. A provisional injunction is similar to the temporary restraining order under federal practice."
Judge McCullough MOVED to amend Rule 65 to include the proposed explanatory note language. Judge Marquart seconded. Motion CARRIED.
RULE 3, N.D.R.Crim.P., THE COMPLAINT; RULE 5, N.D.R.Crim.P, INITIAL APPEARANCE BEFORE THE MAGISTRATE; RULE 7, N.D.R.Crim.P., THE INDICTMENT AND THE INFORMATION (PAGES 179-206 OF THE AGENDA MATERIAL)
The Chair reopened the discussion of Rules 3, 5 and 7. The Chair informed the Committee that the statutory amendments to N.D.C.C. § 29-04-05 that parallel the rule amendments are effective August 1, 2011. The Chair said the Committee could consider sending the rules to the Court immediately as an emergency measure so that the rule amendments could be put in place at the same time as the statutory amendments.
Judge Schneider MOVED to send the rule amendments to the Court immediately as an emergency measure. Ms. Ottmar seconded. Motion CARRIED.
RULE 26, N.D.R.Civ.P., GENERAL PROVISIONS GOVERNING DISCOVERY (PAGES 156-178 OF THE AGENDA MATERIAL)
Judge Kleven MOVED to recommend adoption of the proposed amendments to Rule 26. Judge McCullough seconded.
A member said that there were two parts to the proposed amendments. One part deals with allowing interrogatories to be used to obtain the same information in a state case as would be provided in an expert witness disclosure in a federal case. The other part excludes discovery of materials the attorney provides to the expert witness unless these materials fall within certain exceptions. The member suggested that the Committee discuss the separate proposals one at a time.
Judge Marquart MOVED to delete proposed amendments at page 162, lines 86-93. Mr. Dunn seconded.
A member said the proposed language would invade the attorney work product privilege. The member said that the idea of an attorney having a conversation with a retained expert and then the expert being required to repeat the conversation is unnerving.
A member said the proposed language would protect attorney/expert communications. A member disagreed because the proposal would require the expert to reveal facts or data the attorney provided.
A member said that the problem with the proposed language is that it would make it more difficult to test the information the expert received. If queried, an expert might reply that the attorney did not provide any significant information. The member said there is no way to test such a response for veracity unless the questioner can see what the expert has looked at. The member said the expert should not be allowed to be the gatekeeper for this information.
The member said that, under the current system, attorneys know everything is discoverable and consequently do not put much down on paper. The member said everything should continue to be discoverable. A member said that the proposed rule seems to allow access to most information that attorneys would want to have access to: expert compensation and facts, data, and assumptions the expert was instructed to consider.
A member said the current approach is a sound one because it allows attorneys to operate with their eyes wide open, knowing that all communications with an expert witness are discoverable.
A member said that the federal rule takes a different approach than North Dakota because it requires affirmative disclosure of certain information about experts. The member said that the federal courts had generally interpreted the federal rule to require disclosure of all attorney/expert communications. The member said that the amendment to Fed.R.Civ.P. 26 was designed to place some limitations on disclosure.
A member said the Committee needs to determine its philosophical approach to what is discoverable. The member said that the Committee's discussion of the amendments reveals two positions - that all attorney/expert communications should be protected or that they all should be discoverable.
A member said the purpose of discovery is to show everything and to eliminate surprise trials. The member said that the more light that can be shed on attorney/expert communications, the better.
A member said if the Committee chose to adopt the federal approach, it should also adopt the federal protections for draft reports. The member said that even though North Dakota does not require reports, they are sometimes prepared. A member said that a sophisticated expert will destroy all drafts as a matter of course and they will never be seen.
A member said that when an attorney gives information to an expert, both facts and the attorney's reasoning are provided. The member said it is a problem that an attorney's thoughts can be revealed during expert discovery, and if this becomes formal policy, it will discourage attorneys from telling experts anything.
A member said that experts are hired to provide opinions, not to parrot back the attorney's reasoning or theory of the case. A member replied that the attorney reveals case theory and thinking by pointing out facts that the expert should be considering. A member said that an attorney can provide facts to the expert without sharing reasoning by simply providing the expert with deposition transcripts and other factual material. The member said this is the safest approach because at some point the expert will be asked "what did the lawyer
A member said the main concern about experts is that when they are brought in they know nothing about the case but are being paid big money. Consequently, the simple conclusion is that experts will say anything necessary to help their employers. The member said the only way to persuade the fact finder to think otherwise is to make sure that all the information provided to the expert is disclosed. Because all the expert knows about the case is based on what the attorney provides, disclosure of all this information should be provided.
A member said that the expert could be cross-examined to find out the information used to form the conclusion. A member replied that if disclosures are limited, then attorneys will not know what to cross-examine the expert about.
A member said that part of the reasoning behind the federal amendments was that a lot of time was spent at depositions going through attorney/expert communications. The member said the federal language was designed to provide some standards for what attorney/expert communications are discoverable. A member said the language seems to take a middle ground between the "no discovery" and "everything is discoverable" positions. The member said that the language allows attorneys to probe bias (expert compensation) and the facts and assumptions underlying the expert's opinions. A member said if an expert is using something provided by the attorney to form an opinion, the other side should be able to ask about it.
A member said true work product should not be discoverable - the attorney's mental impressions, thoughts and conclusions. The member said it is preferable that the attorney does not share those things with the expert because this makes it less likely the expert will provide an independent conclusion. A member said an attorney might tell an expert an opinion that a certain witness is a liar; the expert will then be more likely to discount that witness's evidence before even examining it. The member said that the other side should be able to cross-examine the expert on whether the attorney told the expert the witness was a liar.
A member said that adopting either the "no discovery" or the "everything is discoverable" approach would at least provide clarity. The member said the new language in the federal rule does create some uncertainty about what is discoverable. A member noted that the proposed language covers oral communications with experts as well as written communications.
The motion CARRIED with one vote in opposition.
A member said that with the federal language now deleted from the proposal, something would have to be done to clarify the North Dakota position on disclosure of
A member said there was other draft language in the proposal that would require widespread disclosure of information. A member said the proposal's remaining language would require even non-retained experts, such as treating physicians, to disclose a large amount of information that they are not prepared to disclose. A member said that the proposed language does not take into account the distinction made in the federal rule between retained and non-retained experts. The member said the main purpose of the proposed language was to make sure that attorneys in North Dakota could obtain through interrogatories all the information that an attorney in a federal case would get through the required expert report.
A member said that the rule proposal required additional work to integrate the distinction between retained and non-retained experts. A member said that requiring extensive disclosures from non-retained experts like highway patrol officers and treating physicians was not appropriate.
Mr. Boschee MOVED to table the rule until the September meeting so that additional work could be done on the proposed amendments. Judge Herauf seconded. Motion CARRIED.
A member said it would be appropriate to add additional language to the rule to make it clear what attorney/expert communications were discoverable. Members suggested that alternative versions of the rule proposal be made available for the Committee to review, along with Judge Donovan Foughty's recent memorandum opinion on the subject as well as the federal committee's reasoning supporting the federal amendments.
RULE 6.4, N.D.R.Ct., EXHIBITS (PAGES 235-240 OF THE AGENDA MATERIAL)
At the January 2011 meeting, the Committee discussed a proposed administrative order on document scanning, which the Supreme Court subsequently adopted. During its discussions of the new order, the Court found some inconsistencies with N.D.R.Ct. 6.4 on exhibits. The Court requested that the Committee examine the order and Rule 6.4 and consider appropriate amendments.
Judge Herauf MOVED to recommend adoption of the proposed amendments to Rule 6.4. Ms. McLean seconded. Motion CARRIED.
Staff explained that Judge Gail Hagerty, one of North Dakota's Uniform Law Commissioners, forwarded the new Uniform Interstate Deposition and Discovery Act to the Committee for consideration and possible adoption as a rule of court. The proposed new rule would create a uniform procedure for parties from other states to follow when requesting a subpoena in North Dakota and would also provide a procedure for North Dakota clerks to follow when issuing subpoenas after receiving a request.
Mr. Boschee MOVED to recommend adoption of the proposed new rule. Judge Herauf seconded.
A member said that the proposal was good and should be adopted by all jurisdictions. The member said it would not help North Dakota attorneys much until it was adopted by other jurisdictions such as Minnesota, South Dakota, and Montana.
The Chair said that one of the parts of the rule proposal likely to raise questions is the provision that says a party who follows the rule does not invoke the jurisdiction of the court. The Chair asked who would discipline such an attorney if they did not make an appearance. A member replied that the idea was that a party would not have to obtain local counsel or be licensed in the state to use the rule.
The Chair said that the key question would be whether the attorney using the rule was "practicing law" in the state and whether the state would have any control over the attorney. A member said that a provision could be added specifying that the Rules of Professional Responsibility apply.
The motion to recommend adoption of the proposed new rule CARRIED.
Staff informed the Committee that it would conduct research on whether any other rules needed to be amended to implement the proposal and provide the Committee with this information at the September meeting.
RULE 29, N.D.R.App.P., BRIEF OF AN AMICUS CURIAE (PAGES 260-267 OF THE AGENDA MATERIAL)
Staff explained that amendments to Fed.R.App.P. 29 were adopted effective December 1, 2010. These amendments imposed new requirements for identifying the author of an amicus brief and for disclosing party involvement with the drafting or financing of an amicus
Judge McCullough MOVED to recommend adoption of the proposed amendments to Rule 29. Mr. Hoy seconded.
A member asked whether there had been a problem in North Dakota with amici being compensated by parties. The Chair said the Court did not get very many amicus briefs.
The Chair asked the Committee whether the members see any problems under the proposed amendments for attorneys who have appeals before the Court that may be supported by an amicus brief submitted by an organization of which the attorney is a member. Members said the attorney should disclose their membership in such a case.
A member said the funding of amicus briefs by parties was a growing problem in other states and that full disclosure of information about any relationship between a party and an amicus was the best approach. A member said that when a party hires an amicus this essentially gives the party two shots to make its arguments.
The motion to recommend adoption of the proposed amendments to Rule 29 CARRIED.
RULE 804, N.D.R.Ev, HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE (PAGES 268-274 OF THE AGENDA MATERIAL)
Staff explained that amendments to Fed.R.Ev. 804 were adopted effective December 1, 2010. These amendments were designed to improve the clarity of the "Statement Against Interest" exception and to require corroborating circumstances when the exception is used in a criminal case. Staff presented proposed amendments to Rule 804 consistent with the federal amendments.
Judge McLees MOVED to recommend adoption of the proposed amendments to Rule 29. Judge Herauf seconded.
A member questioned whether the amendment would be appropriate given the fact that the North Dakota rule is different than the federal rule. The member said adopting the proposed amendment would change North Dakota law. The member said the federal rule and the North Dakota rule both require collaborating circumstances when a criminal defendant offers a statement against interest of another person as part of the defense. The member said the proposed amendment, which would require corroborating circumstances when the
A member said language in the comment would also have to be removed if the amendment was adopted.
A member said that there seemed to be exceptions within exceptions contained in the current rule and that more research would be appropriate to determine what the current rule means. A member said there are statutes and recent United States Supreme Court decisions that may implicate how the current rule is applied.
Mr. Hoy MOVED to table the rule until the September meeting so that more research into the rule could be conducted. Judge Fontaine seconded. Motion CARRIED.
The meeting adjourned at approximately 10:15 a.m. on April 29, 2011.
Michael J. Hagburg