MINUTES OF MEETING
Joint Procedure Committee
January 29-30, 2009
TABLE OF CONTENTS
Rule 41, N.D. Sup. Ct. Admin. R., Access to Court Records 3
Rule 5, N.D.R.Crim.P., Initial Appearance Before the Magistrate 4
Rule 26, N.D.R.Civ.P., General Provisions Governing Discovery 6
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 6
Rule 48, N.D.R.Crim.P., Dismissal 9
Rule 11, N.D.R.Crim.P., Pleas; Rule 32, N.D.R.Crim.P., Sentencing and Judgment 11
Rule 43, N.D.R.Crim.P., Defendant's Presence 13
Rule 46, N.D.R.Crim.P., Release from Custody 17
Rule 21, N.D.R.Crim.P., Transfer from the County for Trial 18
Rule 41, N.D. Sup. Ct. Admin. R., Access to Court Records 18
Rule 11, N.D.R.Crim.P., Pleas; Rule 32, N.D.R.Crim.P., Sentencing and Judgment 19
Rule 30, N.D.R.Civ.P., Depositions Upon Oral Examination; Rule 30.1, N.D.R.Civ.P.,
Uniform Audio-Visual Deposition Rule 20
Rule 31, N.D.R.Civ.P., Depositions of Witnesses Upon Written Questions 26
Rule 32, N.D.R.Civ.P., Use of Depositions in Court Proceedings 27
Rule 33, N.D.R.Civ.P., Interrogatories to Parties 28
Rule 34, N.D.R.Civ.P., Production of Documents and Things and Entry Upon Land for
Inspection and Other Purposes 28
Rule 35, N.D.R.Civ.P., Physical and Mental Examination of Persons 29
Rule 36, N.D.R.Civ.P., Requests for Admission 31
Rule 37, N.D.R.Civ.P., Failure to Make or Cooperate in Discovery; Sanctions 31
Rule 38, N.D.R.Civ.P., Jury Trial of Right 32
Rule 39, N.D.R.Civ.P., Trial by Jury or by the Court 33
Rule 40, N.D.R.Civ.P., Assignment of Cases for Trial 33
Rule 41, N.D.R.Civ.P., Dismissal of Actions 33
Rule 42, N.D.R.Civ.P., Consolidation; Separate Trials 34
Rule 43, N.D.R.Civ.P., Evidence 34
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on January 29, 2009, by the Chair,
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Justice Mary Muehlen Maring.
ATTENDANCE
Present:
Justice Mary Muehlen Maring, Chair
Honorable M. Richard Geiger
Honorable John Greenwood
Honorable Debbie Kleven
Honorable William McLees
Honorable David W. Nelson
Honorable David E. Reich
Honorable Allan L. Schmalenberger (Thursday only)
Honorable Thomas J. Schneider (Friday only)
Mr. Daniel Dunn (Friday only)
Mr. Robert Hoy
Mr. Richard H. McGee
Ms. Joanne Hager Ottmar
Mr. Steven W. Plambeck
Mr. Kent Reierson
Absent:
Honorable Georgia Dawson
Mr. Larry L. Boschee
Mr. Galen J. Mack
Assistant Dean Jeanne L. McLean
Mr. Bruce D. Quick
Staff:
Mike Hagburg
Kim Hoge
PRELIMINARY MATTERS
The Chair introduced three new members appointed to the Committee: Judge William McLees, Mr. Robert Hoy and Mr. Kent Reierson.
The Chair discussed the schedule for the meeting and reviewed the schedule for future meetings.
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APPROVAL OF MINUTES
Judge Kleven MOVED to approve the minutes. Judge Geiger seconded. By unanimous consent, a typographical error was corrected. Motion CARRIED unanimously.
RULE 41, N.D. Sup. Ct. Admin. R. - ACCESS TO COURT RECORDS (PAGES 24-53 OF THE AGENDA MATERIAL)
Staff reviewed the Committee's actions on Rule 41 at the September 2008 meeting. Staff explained that some comments and criticisms had been made about the amendments to Rule 41 that the Committee might wish to discuss.
The Chair pointed out that there were inconsistencies between N.D.R.Ct. 3.4's redaction requirements and the provision in Rule 41 restricting release of personal information. The Chair said the Rule 41 restriction may be too broad.
Staff gave as an example that Rule 3.4 requires redaction of street addresses of individuals involved in criminal cases while Rule 41 restricts release of all address information for these persons.
A member observed that address information for anyone could generally be obtained through web searching, which indicates that address information is personal information but not necessarily private information.
Judge Kleven MOVED to replace "home" with "street" on page 33, line 158. Judge Nelson seconded.
A member indicated that the proposed change probably would not satisfy background search companies, who want access to the complete street address, not just city and state.
Staff said that the background search companies have indicated that they would like to access birth dates and street addresses in order to cross-check information found during background searches. A member said that people doing background searches on someone with a common name need additional personal details to confirm whether the information they find actually relates to the person they are checking.
A member asked whether using "street address" would create a question of whether it was the home or business address.
By unanimous consent, the motion was amended to retain "home" and insert "street"
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afterward on page 33, line 158.
A member asked whether the suggested change would resolve the issue of whether a juror's address was public. A member said the text of Rule 41 seemed to suggest that access to juror addresses in criminal cases could be restricted. A member replied that the Supreme Court had decided that juror addresses were public and that a juror wishing to keep an address private would need to make a motion to the court.
The Chair said the motion on the floor would make Rule 41 consistent with Rule 3.4 on the issue of addresses in criminal cases.
The motion CARRIED.
The Chair said that other modifications were needed to make Rule 41 consistent with Rule 3.4.
Judge Kleven MOVED to redraft the material at page 33, line 156-58 to make it consistent with Rule 3.4. Judge Schmalenberger seconded.
Staff was instructed to redraft the paragraph for the Committee to review and consider during the Friday session.
Staff reviewed the Committee's actions on Rule 5 at the September 2008 meeting. Staff explained that Mr. Ladd Erickson had now provided draft amendments to Rule 5 for the Committee's consideration.
Ms. Ottmar MOVED to approve the amendments to Rule 5. Judge McLees seconded.
A member said that the proposal did not solve the problems with uniform citations. The member said that if a uniform citation is going to be issued with an order to appear, and the defendant is not jailed, law enforcement should be able to go to the state's attorneys' office and ask for a summons and complaint. The member said that the proposal created a risk of abuse because it could allow uniform citations to be used to arrest and jail a person without a showing of probable cause. The member said that use of uniform traffic citations is being abused now and the courts should not further this abuse by adopting the proposal.
A member said that currently, some defendants are brought into court on uniform
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citations without any involvement by the state's attorney. The member said this is a problem because it puts courts into the position of having to resolve cases without adequate background information. The member said an out-of-state defendant had recently appeared in court on a uniform citation for first offense DUI. The defendant pled guilty and was given a first offender sentence. It turned out that it was actually the defendant's third offense and that the defendant should have spent 60 days in jail. The fact that it was the defendant's third offense only came to light because the defendant was shortly afterward involved in a DUI fatality and the media demanded answers from the court on why the defendant was not in jail. The member said this would not have happened had the state's attorney been involved in the process of charging the defendant. The defendant instead came before the court on a citation issued by law enforcement without higher review.
A member said that abuses of uniform citations happen because state's attorneys are not made aware the citations have been issued.
The Committee discussed the status of the legislation underlying the proposal. The Committee concluded that it had been introduced but no action had been taken to date.
A member asked why state's attorneys were supporting increasing use of uniform citations. A member replied that uniform citations made things easier for state's attorneys. A member said that by allowing the use of uniform citations to increase, state's attorneys were giving up control of the prosecution process.
A member said that the Committee should wait and see how the legislation turns out before taking any action on making changes to Rule 5. The member was opposed to the proposal in its current form. The member said that offenses as serious as felony drug possession have been charged using uniform traffic citations without involvement by the state's attorney. The member said this was improper and the court should not legitimize it by amending the rule.
A member said there are fine distinctions that often need to be made when evaluating whether a set of facts fulfills the elements of an offense. The member said it takes a legally trained person to conduct this evaluation. The member said this responsibility should not be delegated to law enforcement.
A member said that the most common way uniform traffic citations were misused was in charging misdemeanor drug offenses and minor alcohol possession offenses. The member said the abuse of uniform citations was not a large problem currently, but that the rule proposal was too broad and potentially could encourage abuse if adopted.
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A member said that some police departments had developed a habit of doing all charging by using uniform citations. The member said the only way to change such habits is for courts to throw out charges that are brought improperly by uniform citation.
Judge Nelson MOVED to table the proposal until after the legislature acts on the proposed statutory changes. Judge Kleven seconded.
A member said the proposal should be tabled because the Committee will need to revisit the issue after the proposed statutory changes are passed. A member replied that even if the form and scope of the uniform citation statute is amended, there is no requirement that the courts change their procedure in response.
A member said that the Committee should defeat the motion to amend rather than table the proposal. The member said the Committee should not endorse the proposed changes by keeping them under consideration.
Motion to table FAILED.
The motion to approve the proposed amendments to N.D.R.Crim.P. 5 FAILED.
RULE 26, N.D.R.Civ.P. - GENERAL PROVISIONS GOVERNING DISCOVERY (PAGES 70-96 OF THE AGENDA MATERIAL)
Staff presented a version of Rule 26 containing reorganized numbering consistent with instructions expressed by the Committee at the September 2008 meeting.
Judge Geiger MOVED to approve the proposed amendments to Rule 26. Ms. Ottmar seconded.
By unanimous consent, a typographical error on page 82, line 241 was corrected.
The motion to approve the proposed amendments to N.D.R.Civ.P. 26 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
Staff explained that the North Dakota Association of Counties had prepared proposed
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amendments to Criminal Rule 3, 5, and 7 consistent with the Association's proposed legislative amendments to certain statutes.
Judge Kleven MOVED to approve the proposed amendments to Rule 3. Ms. Ottmar seconded.
A member asked whether the change was intended to allow other charging documents in addition to the complaint. A member said that some counties already only use the information and do not start out with a complaint. A member said some counties that have gone to a single charging document call it the "complaint." A member said that other counties still use the traditional system of filing a complaint and then an information.
A member said the most obvious difference between a complaint and an information is that the information requires the endorsement of the witnesses.
A member asked what the status of the uniform citation would be if the proposed changes were adopted. The members said courts have always allowed the use of uniform citations as the initial charging document. Staff said that the proposal would add "citation" to Rule 7. The member said that the correct name of the uniform citation was "uniform traffic complaint and summons."
Staff said that the Association of Counties had also proposed a change to N.D.C.C. § 29-04-05, which would add the word "citation" to the statute on commencement of actions.
A member said that the proposed statutory changes seemed intended to bring the statutes in line with developing practice. The member said that in the county court days, a complaint would be prepared, the preliminary hearing would be conducted in county court, and then an information was prepared when the case moved on to district court. The member said that because cases started out in district court now, there is no need for two charging documents.
A member said that the Committee should wait to see whether the legislature approves the proposed statutory changes before making changes to the rules. A member replied that the rule language at present was not consistent with current practice because cases were being brought in district court by complaint, something the rules do not specifically allow.
A member said that the proposed amendment to the statute to add the word "citation" was ill-advised because "citation" is not used elsewhere in the code but is instead a colloquialism used in the courts. The member said that if the rules are amended, the correct term "uniform complaint and summons" should be used instead of "citation."
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The motion to approve the proposed amendments to N.D.R.Crim.P. 3 CARRIED on a 7-5 vote. Because the motion to approve the rule proposal was not supported by two-thirds of the Committee members present, it will be brought back for further consideration at the next meeting.
Judge Nelson MOVED to approve the proposed amendments to Rule 5. Judge McLees seconded.
A member said that the proposal would conform the rule with existing practice and formally allow prosecutions to be commenced by information rather than by a complaint followed by an information.
A member said that the Committee should take advantage of the opportunity and clean up the rules to eliminate obsolete charging practices. The member said there could be only one document and the rules could define what it needs to contain.
A member said using the term "complaint" for the proposed single charging document would make sense. A member said that complaints, as used currently, do not require witnesses to be listed. The member said that the witnesses will have to be put on the charging document at some point, whether it is a complaint or information.
The motion to approve the proposed amendments to N.D.R.Crim.P. 5 FAILED.
Ms. Ottmar MOVED to approve the proposed amendments to Rule 7. Judge Kleven seconded.
A member said the title of the rule would need to be changed to add "complaint" to the title. A member said the title should reflect whatever charging document the Committee decides to retain as the single charging document. A member said using "complaint" might work best because this is the term used in the "uniform complaint and summons."
A member suggested that "complaint" be used throughout the rules and that the document called the "information" be eliminated.
Judge Kleven moved to change "information" to "complaint" throughout Rule 7 and to eliminate the proposed use of the term "citation." Judge Schmalenberger seconded.
A member asked whether the current requirements for items included in an information would become requirements for a complaint under the proposed amendment. The consensus was that everything now part of an information would need to be included in
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the complaint if the proposed amendment were approved.
A member said that this would make charging a misdemeanor more complex because more material would need to be included in the complaint. A member said that witnesses would need to be endorsed on the complaint.
The Chair asked whether there was a need to distinguish between a "complaint" and a "uniform summons and complaint." A member answered that currently a uniform summons and complaint could only be used for traffic or game and fish offenses. The Chair reminded the Committee that the legislature was considering expanding the scope of the uniform summons and complaint.
A member pointed out that a Rule 3 complaint requires presentation before a magistrate while a uniform summons and complaint does not.
A member said it would be a good idea to put the proposed changes to Rule 7 on hold until the legislature acts on revising the uniform summons and complaint.
The motion FAILED.
Judge Nelson MOVED to postpone consideration of the Rule 7 proposal and to have staff prepare a revised proposal that would be consistent with any legislative changes and would eliminate the "information" in favor of the "complaint." Mr. Plambeck seconded.
A member asked whether there were any reasons why it may be necessary to retain the information. A member suggested that staff research this issue while preparing the revised proposal. A member said the goal should be to simplify the system so that a single document can be used to charge criminal matters.
The motion to postpone consideration of N.D.R.Crim.P. 7 CARRIED.
RULE 48, N.D.R.Crim.P. - DISMISSAL (PAGES 123-141 OF THE AGENDA MATERIAL)
Staff explained that the Chief Justice had requested that the Committee discuss amending Rule 48 to correct a possible interpretation issue created by a recent Supreme Court case.
Judge Geiger MOVED to approve the proposed amendments to Rule 48. Mr. Plambeck seconded.
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The Chair said that the Supreme Court had split in State v. Ferrie on when a court could dismiss a case in which no information or complaint had been filed. The Chair said that the split among the Court's members extended to a difference of opinion on when a criminal case commences.
A member said the underlying case was an example of what happens when a person is arrested under a uniform summons and complaint and there is no follow up by the police or the state's attorney. The criminal file was empty when the defendants made their initial appearanceit did not even include a copy of the uniform summons and complaintso the trial court judge dismissed the criminal action.
A member said the proposed change would not solve the problem raised by the case because it did not specifically address what happens when there is a delay in a criminal action caused by the non-filing of a uniform complaint and summons. A member said that a uniform complaint and summons is still a complaint and the proposal covered complaints.
Staff explained that the proposed statutory changes that the Committee had reviewed previously would use the term "prosecution" to describe a criminal action, case or proceeding and that the Committee might want to use this terminology in the rule.
A member said that the term used in N.D.R.Crim.P. 1 is "criminal proceeding" and that it would be appropriate to use consistent terminology in any amendments to Rule 48. A member said that it would be wise not to introduce any foreign terminology to the criminal rules.
Mr. Plambeck MOVED to amend the proposal at page 125, line 9 to replace "action" with "proceeding." Ms. Ottmar seconded. Motion CARRIED.
A member asked whether a uniform complaint and summons was actually the equivalent of a complaint. A member said that it seemed that at least some of the justices in the State v. Ferrie had doubts about whether a "uniform complaint and summons" qualified as a complaint.
A member said that Rule 3 defines what a complaint is and that all those elements seemed to be included in the uniform complaint and summons. A member said that N.D.C.C. § 29-05-31 indicated that a separate complaint was not required when a uniform complaint and summons had been issued.
A member said that perhaps new language could be added to the rule to make it clear that the uniform complaint and summons was included under Rule 48.
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Mr. Hoy MOVED to amend the proposal at page 125, line 12 by adding a new paragraph (b)(3): "filing a uniform complaint and summons as permitted by law; or" and then renumber. Judge Schmalenberger seconded. Motion CARRIED.
The motion to approve the proposed amendments to N.D.R.Crim.P. 48 and to send the rule to the Supreme Court as part of the Annual Rules Package CARRIED.
Staff explained that Justice Maring had requested the Committee discuss Rule 32's guilty plea withdrawal provision to see if it could be made clearer and to address whether it should be made part of Rule 11 consistent with the federal rule.
Judge McLees MOVED to approve the proposed amendments to Rules 11 and 32. Judge Reich seconded.
A member said that adopting the language and structure of the proposal would make the guilty plea withdrawal procedure much clearer. The member said the current standards, such as "manifest injustice," were not easy to understand.
The Chair pointed out that the proposal would constitute a substantial change because it would eliminate all motions to withdraw guilty pleas after sentencing. The Chair said that the only way to challenge a guilty plea after sentencing would be by direct appeal or post- conviction relief. The Chair said the proposal would require all motions to withdraw guilty pleas to be made before sentencing.
A member said the current terminology was nebulous and hard to define.
A member noted that under the proposal, the court would be able to deny a plea withdrawal if the prosecution substantially relied on the defendant's plea. The member asked when this situation might occur. A member explained that a witness issue could cause substantial prejudiceif the witnesses were released and no longer available because the prosecution relied on the guilty plea.
A member asked whether the substantial prejudice provision shifted the burden to the prosecution. A member replied that such a shift would occur only if the defendant had already shown a fair and just reason for the withdrawal.
Judge Nelson MOVED to delete the word "requesting" on page 146, line 75. Judge
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Kleven seconded.
A member said the "fair and just reason" should support the plea withdrawal, not the request to withdraw.
Motion CARRIED.
A member said that the part of the proposal that would make a guilty plea final after sentencing would change North Dakota's substantive law. The member said that it was not appropriate to foreclose a motion to withdraw a guilty plea after sentencing. The member said that such motions are rarely made but the rules should not close the door on the possibility. The member said direct appeal and post-conviction relief are not viable alternatives because there is such a short time frame for direct appeal and because issues that could have been raised on direct appeal will not be considered on post-conviction relief.
A member said that the withdrawal procedure should be moved out of Rule 32 and into Rule 11 as in the federal rules. The member said that the state, however, should not adopt the federal plea withdrawal system.
A member asked under what circumstances a court would allow withdrawal of a guilty plea after sentencing. A member said that a person could learn years after sentencing that a guilty plea would affect professional licensing, for example. If the person had completed all conditions of the sentence, withdrawal of the guilty plea and dismissal of the charge would be a possibility under the current rule.
A member said that, because many court records are now online, there is a growing interest among people who may have once pled guilty to a crime to somehow have the plea eradicated. A member said that many companies will not hire anyone with a criminal record, no matter how minor or long ago the offense may have been committed. A member said that it serves justice to have a mechanism to vacate long ago judgments.
A member said there may be other ways to accomplish the erasure of old offenses without allowing the post-sentence withdrawal of guilty pleas. A member said judges have inherent discretion to not accept guilty pleas and to dismiss charges. A member replied that it is sometimes difficult to see what the repercussions might be from accepting a guilty plea in a given case.
The Chair pointed out that Minnesota has not followed the federal rule and still allows withdrawal of guilty pleas after sentencing to correct manifest injustice.
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A member said manifest injustice was not a clear concept and that the terminology in the proposal was easier to understand. The member said that the proposal also gave greater respect to the finality of judgments.
A member said it would be beneficial to have a mechanism that allows courts to allow the withdrawal of a guilty plea after sentencing on the rare occasions when this will serve the interests of justice. The member said that the collateral consequences of a guilty plea are not apparent until years after the plea is entered and the sentence is served.
A member said that another difference between the proposed change and the current system is that when "manifest injustice" is shown, the court must allow withdrawal of the guilty plea while under the proposal any withdrawal is subject to the court's discretion.
A member said that N.D.C.C. § 12.1-32-07.1 allows courts to set aside guilty pleas when defendants have completed all the conditions of probation. The member said the statute provides a mechanism outside of the rules for defendants seeking to withdraw a guilty plea.
A member said that the manifest injustice standard could be made part of the proposal as a safety valve.
Judge Geiger MOVED to table the proposal so that staff could redraft and add a post sentence guilty plea withdrawal mechanism that would use the manifest injustice standard. Judge Nelson seconded.
Staff presented language that could possibly be used to implement a post sentence plea withdrawal mechanism within the context of the rule. A member suggested that the paragraphs of the guilty plea withdrawal section be renumbered so that staff's proposed revisions would become paragraph (2).
By unanimous consent, the motion was amended to include staff's proposed language and to renumber the paragraphs. Also by unanimous consent, staff was requested to prepare a new draft of the proposal for the Committee to review at Friday's session prior to voting on the motion.
RULE 43, N.D.R.Crim.P. - DEFENDANT'S PRESENCE (PAGES 191-222 OF THE AGENDA MATERIAL)
Staff explained Judge Gail Hagerty had requested that the Committee consider superseding N.D.C.C. § 29-22-05 by adopting a rule the would implement guidelines on
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answering juror questions and responding to juror requests for reading of transcripts.
Judge Nelson MOVED to approve the proposed amendments to Rule 43. Judge McLees seconded.
A member asked whether it was error to not follow the statutory procedure if the defendant waived the right to have the jury present. The Chair replied that rights, including constitutional rights, may be waived but when this happens it needs to be on the record. The Chair said that in State v. Kruckenberg, the Supreme Court opinion that had led to Judge Hagerty's request, many things had been done off the record. The Chair pointed out that a long line of Supreme Court cases require all communications with the jury to be made in open court and in the presence of the defendant.
Staff said that N.D.C.C. § 29-22-05 dealt with two issues: what procedure is to be used in answering a question by the jury and how does the court respond to a request for the reading back of testimony. Staff said the proposal would supersede the statute and allow the court to use its discretion to deal with both these issues.
A member said that problems with jury questions are most likely to occur when the jury submits a question by note to the judge and the judge answers the question without consulting the defendant or counsel. The member said that if counsel and the defendant are present and everyone is involved with determining an answer to the jury question through an on-the-record discussion, there are few problems. The member said that most courts respond to jury questions in this way rather than by following the statutory procedure.
A member said the statutory requirements for providing testimony to the jury are more problematic than the jury question requirements. The member said that some courts do audio recordings of testimony and do not transcribe the recordings until after the trial. The member said that one judge who uses this method has interpreted the statute's requirement that a transcript be read to prohibit playing the audio recording for the jury. Instead, transcription of the requested testimony would be required. The member said the statute is outdated and courts should have discretion to allow juries to listen to audio recordings of testimony.
A member said that the language of the statute does not require that jury questions be answered in open court unless the jury requests to return to open court. The member said that in almost all cases, the jury will write out a question and not ask to be brought back to open court. A member responded that the Supreme Court has interpreted the statute to require the jury to be brought back to open court whenever they ask a question.
A member asked whether this issue would be best addressed by the legislature. The
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member said the statute seemed very clear. Staff said that how to respond to a jury request seemed to be a matter of procedure, so the Supreme Court could choose to supersede the statute by implementing a rule of procedure on the subject.
A member said that the language of the statute was not sufficient to provide guidance on issues raised by real time court reporting. The member said that jurors who see that real time court reporting is being done are more likely to ask for witness testimony transcripts to read in the jury room. The member said the statute seemed to place some restrictions on how much testimony could be provided to jurors and how the testimony could be provided. The member said the court should have discretion to decide how to present real time transcripts to the jury.
A member said the statute dated back to the 1880's when all testimony was recorded on paper and reading it back was the primary method available to translate the reporter's shorthand. The member said that allowing jurors to listen to an audio recording of testimony should be an option when appropriate. A member said that sometimes, it is also appropriate for the court to advise jurors that they must rely on their memory.
A member said the most important factor is that the defendant must be present when jury questions are answered and responses to testimony requests are made. The Chair said case law shows that not all judges make certain that the defendant is present at these key moments. A member said that if counsel and defendant are present and consulted, allowing the judge to use discretion to decide how to respond to a jury request is the best approach.
A member said that when the court gives jury instructions, they are recited in front of the jury so all the members can hear it. The member said if judges are allowed to answer jury questions about instructions by note, the jury leader could paraphrase the answer and may get it a bit wrong. The member said that following the statutory procedure assures that all the jury members hear answers to questions about the instructions in the same manner that the instructions were read in the first place.
A member said the problem in Kruckenberg was two parts of the statute. The statutory requirement that the jury be brought back into the courtroom when they have a question is rarely followed, generally by agreement of the parties. The statutory requirement that the transcript be read is outdated. The member said that, in theory, it would be best to bring the jury back in the courtroom to answer questions. The member said that using other methods by agreement also worked. The member said the transcript reading requirement was a problem, especially if the testimony has been audio recorded and the recording can be played.
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A member said the proposal goes too far to correct problems related to the statute. If a defendant does not want to cooperate with the trial and is absent from juror question discussions, will that bring the whole process to a halt? The member said some steps should be taken to account for this possibility. The member said the proposal should also allow for stipulations on how juror question issues are going to be handled. Finally, the member said the judge's discretion to decide how to respond to a juror question or request should not be unfetteredcounsel should be able to raise objections.
A member said that the discussion showed why the proposed change was inappropriate. The member said that while constitutional issues were implicated in the issue, the defendant can waive a constitutional right and the court's duty if this happens is to make certain the defendant understands the consequences. The key is that the waiver and confirmation appear on the record. The member said the statute's open court question and answer requirement too can be waived if there is knowing and recorded waiver. The member said the statute's transcript requirement likewise should not be taken too literally because a verbatim audio recording is no less accurate than a transcript. The member said there was no reason to supersede the statute.
A member said that Judge Hagerty was correct that handling of jury questions and requests was procedural and a proper subject for a rule. The member said constitutional rights can be protected by rule as well as by statute. The member said that granting the court complete discretion, as proposed in the draft, is not appropriate but that it would be appropriate to take the substance of the statute and transfer it to a rule. The member said the Committee could then work to make sure the procedure was up to date and contained constitutional safeguards.
A member said that the presence of the defendant is essential. The member said if the defendant is absent, it is a constitutional violation. The member said a lawyer's presence cannot substitute because at times there will be disagreements. The member said if it was moved out of the statute a rule could be written to guarantee constitutional rights and allow alternative ways to present transcript. The member said it would be a good idea to move substance out of the statute and into this rule because this rule focuses on the defendant's presence.
The Chair reminded the Committee of the long line of cases that require any communication with the jury to be in open court with the defendant present. The Chair said the issue of whether the jury had a request to return to open court had not been raised in these cases.
Staff said that if the statutes were superseded by bringing its substance into the rule,
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the Committee could adjust the language to deal with current practice on answering jury questions and responding to requests to review testimony.
The Chair said that the key lesson of the case law was that if the jury was not going to be brought back into open court, the record must reflect all other steps that were taken to answer the jury question and that the defendant was present throughout the process.
A member said the open court requirement also served the public, which has a right to know what is going on in a criminal trial. A member said the public interest could be served by discussing written juror questions in the courtroom rather than in chambers. A member said the jury could be brought in after the discussion and the answer could be read to them.
Mr. Plambeck MOVED to have staff redraft the proposal to bring the substance of the statute into the rule with adjustments as suggested in the Committee's discussion. Judge McLees seconded. Motion CARRIED. The redrafted proposal will be discussed at the Committee's next meeting.
RULE 46, N.D.R.Crim.P. - RELEASE FROM CUSTODY (PAGES 223-241 OF THE AGENDA MATERIAL)
Staff explained that attorney Mr. Michael Hoffman had requested that the Committee discuss whether the 24/7 program of monitored release from custody was in compliance with Rule 46.
The Chair said that the Attorney General was backing the program and it was being tested as a pilot project in the South Central Judicial District. A member said that a bill before the legislature would make imposition of 24/7 monitoring mandatory on a second offense DUI as a bail condition.
A member said that the program was beneficial because it forces sobriety. The member said that imposing this condition under Rule 46 was appropriate because the court has discretion under the rule to determine conditions of bail. The member said that the program requires the monitored person to take a breath test twice a day. The member said that the theory behind the program is that if a person knows tests will be conducted every 12 hours, they will not drink.
The member said officials from South Dakota, which uses the program, say it is very effective. The member said if a person shows up late, they are held for a bond review. If a person tests positive, they are held for a bond review.
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A member said a major concern of law enforcement was that the program would be an unfunded mandate.
A member said the problem with Mr. Hoffman's request was that he was asking the Committee for an advisory opinion on whether or not the program was proper. A member said that the 24/7 program was a lot like the methamphetamine testing imposed by statute several years ago. The member observed that this testing continues.
A member said that courts often require drug or alcohol testing as a bail condition. The member said such testing is appropriate under Rule 46 as long as there is case-by-case consideration.
By unanimous consent, the Committee instructed staff to inform Mr. Hoffman that the Committee had discussed the issue and decided to take no action.
RULE 21, N.D.R.Crim.P. - TRANSFER FROM THE COUNTY FOR TRIAL (PAGES 242-248 OF THE AGENDA MATERIAL)
Staff explained that the district court administrative unit staff had proposed an amendment to Rule 21 to provide for administrative oversight of case transfers.
A member said that just because a judge may take an ill-advised step in transferring a case does not mean the rules of procedure need to be amended to guard against the situation happening again. The member said that judges generally exercise courtesy and make advance inquiries before transferring cases.
By unanimous consent, the Committee instructed staff to inform the administrative unit staff that the proposed amendment was not appropriate for inclusion in the procedural rules.
The meeting recessed at approximately 4:30 p.m. on January 29, 2009.
January 30, 2009 - Friday
The meeting was called to order at approximately 9:00 a.m. by Justice Mary Muehlen Maring, Chair.
RULE 41, N.D. Sup. Ct. Admin. R. - ACCESS TO COURT RECORDS (PAGES 24-53 OF THE AGENDA MATERIAL)
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The Committee returned to consideration of Rule 41. Staff distributed proposed amendments prepared at the Committee's direction.
The Committee considered the following proposed amendment to Section 5 of Rule 41:
(8) personal information:
except for the last four digits, social security numbers, taxpayer identification numbers, and financial account numbers,
except for the year, birth dates,
except for the initials, the name of an individual known to be a minor,
any financial
account numbers, and,
in criminal cases, the home street address of an individual;
The motion to amend Rule 41 CARRIED.
A member said that the Clerk of Court's Manual would be revised in April and that it would be appropriate to get any proposed changes to Rule 41 to the Supreme Court before that time so that the changes could be included in the manual.
Ms. Ottmar MOVED to adopt the amendments to Rule 41 and to send the proposal to the Supreme Court immediately as an emergency measure. Judge Kleven seconded. The motion CARRIED.
The Committee returned to consideration of Rules 11 and 32. Staff distributed proposed amendments to Rule 11 prepared at the Committee's direction.
The Committee considered the following proposed amendment to Rule 11:
(d) Withdrawing a Guilty Plea.
(1) In general. A defendant may withdraw a plea of guilty:
(A) before the court accepts the plea, for any reason or no reason; or
(B) after the court accepts the plea, but before it imposes sentence if:
(i) the court rejects a plea agreement under Rule 11(c)(5); or
(ii) the defendant can show a fair and just reason for the withdrawal.
(2) Finality of a Guilty Plea. Unless the defendant proves that withdrawal is necessary to correct a manifest injustice, the defendant may not withdraw a plea of guilty after the court
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has imposed sentence.
(3) Prosecution Reliance on Plea. If the prosecution has been substantially prejudiced by reliance on the defendant's plea, the court may deny a plea withdrawal request.
The Chair reminded the Committee that the proposed new language would become part of Rule 11 and move out of Rule 32, consistent with the federal change. The Chair said that the proposed language was not a wholesale adoption of the federal language but language that had been adjusted to reflect the concerns of the Committee's members.
A member asked whether the prejudice to the prosecution could bar withdrawal of a plea at any point, even before the court accepts a plea. The consensus was that prejudice would be a bar.
The motion to amend the proposal CARRIED.
The motion to approve the proposed amendments to N.D.R.Crim.P. 11 and 32 and to send the rules to the Supreme Court as part of the Annual Rules Package CARRIED.
Staff explained that Fed.R.Civ.P. 30 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 30. Staff added that if the Committee accepted the amendments to Rule 30, repeal of Rule 30.1 might be appropriate.
Judge Kleven MOVED to approve the proposed amendments to Rule 30. Judge Geiger seconded.
A member asked about the proposed language that, in a remote deposition, the location where the deposition "takes place" is designated as the place where the deponent is located. The member said that the proposal should be clarified to indicate where the officer should be located.
The Chair said that the Supreme Court had recently addressed a remote testimony situation and one issue in such cases is the oath. The Chair said that whether the person giving the oath has to be present with the person testifying or whether the oath can be given remotely is a question open to debate.
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A member said that the amount of testimony being taken remotely is increasing. The member said that the oath is usually given over the telephone, but that a careful record is made of where the person is and who is with them. The member said that counsel are also polled on the record to ensure they are satisfied that the person testifying is the right person and is under oath.
A member said that the rule should require that notice be given of where the officer will be located so that the parties can decide where they should attend the deposition or whether they should attend remotely. The member said this information could be included in the deposition notice.
A member said that if a remote deposition, by rule, "takes place" where the deponent is located, an attorney who takes a deposition from a remote location could be considered to be practicing law in that location. The member said it would be better to have all remote depositions defined as taking place in North Dakota, regardless of where the deponent is located.
A member said the same question could be raised about depositions where an attorney travels to take a deposition to be used in a North Dakota case: is it "practicing law" to go outside North Dakota to take a deposition? A member replied that some jurisdictions had reached this conclusion, in particular Florida.
A member said that it is acceptable for the federal rule to define a deposition as taking place where the deponent is located, given that anywhere in the country is within federal jurisdiction. The member said that different issues arise in state cases because each state is its own jurisdiction.
A member said defining where a deposition takes place in the rule lets parties know which court to turn to for assistance if problems arise with a deposition. A member said that other discovery rules state that a party can seek relief in the court where the action is pending or the court where the deposition takes place. A member said this can be a problem because counsel can try to pick and choose their forum.
Mr. Reierson MOVED to add language at page 253, line 55: "The officer may be present where the parties stipulate or the court orders." Judge Nelson seconded.
Mr. Plambeck MOVED to amend the motion to make the proposed language a separate sentence rather than a clause in the existing sentence. Mr. Reierson seconded. Motion to amend CARRIED.
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A member asked whether the language at page 253, lines 50-52 was necessary. The member said that for practical purposes, it would only apply if a deposition takes place out of state. A member said that rather than considering a remote deposition to take place where the deponent is located, it would make more sense to consider it taking place where the action is venued.
Mr. McGee MOVED to amend language at page 253, lines 51-52, to replace "where the deponent answers the questions" to "where the action is venued." Judge Geiger seconded.
A member said changing to venue would be good because that would make it clear which judge to go to for assistance with disputes. A member said the change would recognize that state courts are different than federal courts.
A member said the change could create problems when the deponent in a North Dakota case is located in a different state. The member said that having the venue court deal with any disputes would be fine if the deponent was associated with a party. The member said if the witness was a non-party, the North Dakota court would not be able to enforce cooperation.
A member said that letters rogatory were previously used when examining a non-party witness out-of-state. The member said a judge in the state where the deposition takes place would become involved in the matter by issuing a subpoena and would then be able to deal with disputes. The member said that the procedure is currently used little.
Staff said that Rule 37 requires disputes involving parties to be settled in the court where the action is pending while non-party disputes must be resolved in a court where the deposition is taken.
A member said that Rule 37 allows parties to obtain assistance in discovery from the appropriate court and does not seem to conflict with the proposed amendment to Rule 30. The member said that the proposed amendment, however, may create an ambiguity.
The Chair asked if the North Dakota court where the action was venued issued an order to an out-of-state deponent, how would the order be enforced?
A member asked whether remote depositions typically involve cooperative witnesses. A member said that when there is an uncooperative out-of-state witness, having a subpoena issued after letters rogatory were sent would be the best approach. A member asked whether the issues being discussed were really likely to arise if most remote depositions involve
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cooperative witnesses.
A member asked whether Rule 37 could be amended to be consistent with the proposed amendment to Rule 30. A member replied that the proposed amendment would create an inconsistency unless Rule 37 was also amended.
The Chair suggested that multi-jurisdictional practice was opening up and that problems with out-of-state courts might be reduced in the future. A member said that the problem of being accused of unlawful practice of law was a rare one but something that attorneys have to consider.
A member suggested that the cross-references at page 253, line 51, be removed. The member said this would make it clear that the proposed amendment indicating that a remote deposition takes place where the action is venued applies only to remote depositions conducted under this rule.
A member said that even if this modification was made, there might still be a conflict between this rule and Rule 37 and the possibility of forum shopping for relief would still exist. A member replied that Rule 37's guidance would prevail because it specifically dealt with resolution of discovery disputes.
The motion FAILED.
Ms. Ottmar MOVED to delete the sentence beginning at page 253, line 50 and ending on line 52. Mr. Dunn seconded.
A member said that Rule 37 covered discovery enforcement and resolution of discovery disputes and there appeared to be no reason why the language was needed in this rule.
The motion CARRIED.
The Chair asked the Committee to look at page 258 beginning at line 150. The Chair said the deposition time limit in the proposal was new. Staff said that the language on sanctions was also new.
Mr. Plambeck MOVED to delete the proposed new text on deposition sanctions at page 258, lines 155-57. Mr. Reierson seconded.
A member stated that sanctions are covered in Rule 37. The member said that it was
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not wise to move the sanctions provisions out of Rule 37 and spread them throughout the rules.
A member said that if the motion carried and the sanctions provision was removed, the term "sanction" would need to be removed from the subdivision title. By unanimous consent, the motion was amended to also remove "sanction" from the title.
A member said the sanction language was appropriate because it emphasized the importance of attorneys and parties abiding by the spirit of the rule. The member said the sanctions language was in the rule for a reason and it was proper to retain it.
A member said that Rule 37 did not seem to have language echoing the language in the Rule 30 sanction provision. The member said if the language on impeding, delaying or frustrating a deposition might need to be added to Rule 37 if it is deleted from this rule.
The motion FAILED.
Mr. Hoy MOVED to delete the proposed new text on deposition time limits at page 258, lines 151-54, and the reference to duration in the subdivision title. Mr. Dunn seconded.
A member said that it is rare for a deposition to go longer than seven hours, the time limit proposed. The member said that there may be good reason for a deposition to go longer and by putting a time limit in the rule, it may establish an artificial "finish line" for a deponent who may want to slow the progress of a deposition so as to escape the examination once the time limit is reached. The member said that it is not rare for deponents to "dance" a long time before they will finally answer deposition questions.
A member said that the purpose of the sanctions and duration amendments to the federal rules was to attempt to ensure professional courtesy in conducting depositions and to reduce costs of depositions by preventing them from continuing for an excess amount of time. The member said time limits were not a bad idea because additional time could be requested and because the time limit could force the parties to focus on completing the deposition in one day.
A member said that the duration limit was a good idea in theory but that it also could lead to disputes about whether breaks and lunch count toward the duration limit. The member said setting an artificial duration limit can create issues that would otherwise not arise.
The motion CARRIED.
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Staff said the next major proposed revision to the rule began at page 259, line 175. Staff said the proposed revision would change the review procedure for depositions.
By unanimous consent, a typographical error was corrected on page 259, line 179.
A member asked what would happen if the deponent did not send back the correction page. Staff said the proposed new language would foreclose changes if the correction sheet was not sent back within 30 days.
By unanimous consent, the word "made" was inserted at page 259, line 179.
A member said the current rule specifically clarifies that if the deponent does not sign the correction sheet within 30 days, the deposition is deemed to contain the deponent's testimony. The member said such clarifying language should be included in this rule so that there are no grounds for argument.
Mr. Hoy MOVED to amend to add language to page 260 after line 194 that would include the substance of the current language included in the materials beginning at page 259, line 186 and ending at page 260, line 191. Ms. Ottmar seconded. The motion CARRIED.
A member pointed out language at page 251, line 6, and page 252, line 34, referring to service of a subpoena on a deponent. The member said that a subpoena would be necessary for a party and that the rule's language should specify that subpoenas need only be served on non-party deponents.
Mr. Plambeck MOVED to amend page 251, line 6, and page 252, line 34, to add the term "non-party" prior to "deponent." Mr. Dunn seconded.
A member said that the proposed additional language would add clarity to the rule about when a subpoena is necessary. A member said there had been some confusion involving subpoenas to parties in discovery matters. The member said that parties are required to comply with discovery requests without the need for subpoenas.
Motion CARRIED.
A member asked why the special notice provision at page 254 line 79 referred to a "plaintiff" rather than a "party." The member said a defendant should be given the same special notice opportunity. A member replied that language beginning at page 251, line 9 does not require the plaintiff to seek leave for taking a deposition within 30 days of
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commencement of the action if the defendant has already served a deposition notice. The member said that the special notice language simply sets out the procedure a plaintiff must follow if the defendant has opened the door to discovery by serving a deposition notice within 30 days of commencement of the action.
A member said that the word "deponent" had been generally used throughout the rule, but that beginning on page 259, line 175, the word "witness" was used. The member said that there should be consistency throughout the rule.
Mr. Plambeck MOVED to substitute the word "deponent" for the word "witness" throughout the rule. Judge Geiger seconded. Motion CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 30 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
Judge Kleven MOVED to propose repeal of Rule 30.1. Judge Geiger seconded.
A member said that Rule 30.1 was no longer necessary given the amendments approved to Rule 30.
Motion CARRIED.
The repeal proposal will be sent to the Supreme Court as part of the Civil Rules Package.
Staff explained that Fed.R.Civ.P. 31 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 31.
Mr. Dunn MOVED to approve the proposed amendments to Rule 31. Judge Kleven seconded.
Mr. Plambeck MOVED to amend language at page 280, line 10, to replace "The" with "A non-party." Mr. Hoy seconded. Motion CARRIED.
A member said the list of organizations in the proposal sounded like an exclusive list, but that there were many organizations recognized under North Dakota law, like limited liability companies, that were not included. The member said that some terminology should
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be added to encompass these other organizations.
Mr. Plambeck MOVED to amend language at page 281, line 32, to add "or other organization or entity" after "agency." Judge McLees seconded.
By unanimous consent, the words "or entity" were removed from the motion.
Motion CARRIED.
A member said that new language in the proposal on Notice of Filing had been previously deleted from the North Dakota rule. The member said the deletion probably occurred when the rules were changed to stop most filing of discovery materials. The member said the restoration of this language was not necessary.
Mr. Plambeck MOVED to delete the new language at page 282, lines 58-60, of the proposal. Judge Reich seconded.
A member said any filing of a deposition would be covered under N.D.R.Civ.P. 5.
Motion CARRIED.
The Chair noted that the word "send" was used at page 282, line 57. The Chair asked what "send" meant. A member said that the provision cross-referenced N.D.R.Civ.P. 30(f), which contained a definition of "send."
A member questioned the use of the term "deliver" at page 282, line 52. The member said it sounded like hand delivery was required. A member said that substituting "serve" for "deliver" would not be a good idea because formal service should not be required. A member said that "deliver" had been used in the rule for many years without problems.
The motion to approve the proposed amendments to N.D.R.Civ.P. 31 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
Staff explained that Fed.R.Civ.P. 32 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 32.
Mr. Dunn MOVED to approve the proposed amendments to Rule 32. Judge Kleven
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seconded.
By unanimous consent, a typographical error at page 288, line 31, was corrected.
The motion to approve the proposed amendments to N.D.R.Civ.P. 32 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 33, N.D.R.Civ.P. - INTERROGATORIES TO PARTIES (PAGES 301-310 OF THE AGENDA MATERIAL)
Staff explained that Fed.R.Civ.P. 33 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 33.
Judge Schneider MOVED to approve the proposed amendments to Rule 33. Judge Reich seconded.
Staff pointed out language on page 305, lines 62-63, on repetitive discovery. A member said the language meant that discovery by one was discovery by all. A member added that the language required parties to supplement discovery even if they did not serve the discovery request. A member said that sometimes parties are dismissed and the language was meant to encompass their responses to discovery.
A member said the language did not address the question of what happens when a party (in a multiple party case) serves discovery answers only on the party that served the discovery requests.
Mr. Plambeck MOVED to delete the sentence beginning at page 305, line 62 and continuing on line 63, and replace it with: "Interrogatories served by one party are considered to be served by all parties." Mr. Reierson seconded. Motion CARRIED.
Ms. Ottmar MOVED to add "or other organization" after "agency" at page 304, line 26. Judge Kleven seconded. Motion CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 33 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
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Staff explained that Fed.R.Civ.P. 34 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 34.
Ms. Ottmar MOVED to approve the proposed amendments to Rule 34. Mr. Dunn seconded.
By unanimous consent, the words "of being" were deleted at page 314, line 62.
By unanimous consent, a typographical error was corrected at page 315, line 72.
The motion to approve the proposed amendments to N.D.R.Civ.P. 34 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
Staff explained that Fed.R.Civ.P. 35 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 35.
Judge McLees MOVED to approve the proposed amendments to Rule 14. Ms. Ottmar seconded.
By unanimous consent, a typographical error was corrected at page 320, line 16.
A member asked whether the courts are seeing more disputes, especially with independent medical examinations. The member said there was an issue about whether these examinations could be recorded or whether witnesses could be allowed to observe them. The member said that IMEs seemed to be becoming more adversarial.
The member said having female clients who were required to submit to IMEs was a special concern because there were no female IME doctors in the state. The member said questions of impropriety can arise in an unsupervised examination of a female client by a male IME doctor.
A member said that it may not be desirable to do an IME but it is often necessary. The member said it was difficult to find any doctors in the state who would perform IMEs. The member said that if a female doctor was required for an IME the client would need to travel out-of-state.
A member said that having a doctor of the same sex was less important that having
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the events of the IME recorded in an accurate manner. The member said if there are only two people in the room, conflicts can arise about what went on. A member replied, however, that if additional people are allowed in the examination, claims of interference with the examination are possible.
A member said that, under the existing rule and existing practice, the court has discretion to set the conditions and circumstances of the examination. The member said it would be best to leave this to the court's discretion rather than putting new requirements into the rules. A member replied that leaving it to the court's discretion creates inconsistencies because different judges have different ideas about what conditions are appropriate for a medical examination: One judge may allow a tape recording of the examination while another may allow a family member to observe while another may allow a law firm staffer to observe.
A member said that attorneys were more frequently attacking the credibility of IME doctors in court by asking about the duration of the examination and whether anyone else observed it. A member said, when the issue of having a recorder or observer is raised, doctors sometimes claim that the doctor-patient relationship should be confidential. The member said there is no actual doctor-patient relationship in an IME, but the doctors have a difficult time accepting this.
A member said that most IMEs are done by agreement rather than a court order under the rule. The member said the terms of the examination are set by the agreement. The member said it might be useful to have more examination conditions in the rule so that these can be made parts of agreements and so that parties do not have to threaten to get the court involved. The member said, for example, a rule could make it clear who the client could take along to the IME.
A member said that, under the rule, the judge's order must specify the time, place, manner, conditions and scope of the examination. The member said that the rule gave the court broad discretion to set conditions for the examination.
By unanimous consent, the word "who" at page 321, line 37 and line 42, was changed to "whom."
A member questioned the use of the word "requester" at page 321, line 35.
Mr. Plambeck MOVED to delete "to the requester" at page 321, line 35. Ms. Ottmar seconded. Motion CARRIED.
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The motion to approve the proposed amendments to N.D.R.Civ.P. 35 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 36, N.D.R.Civ.P. - REQUESTS FOR ADMISSION (PAGES 327-334 OF THE AGENDA MATERIAL)
Staff explained that Fed.R.Civ.P. 36 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 36.
Judge Schneider MOVED to approve the proposed amendments to Rule 36. Mr. Dunn seconded.
By unanimous consent, the paragraph number (2) at page 329, line 41, was changed to (3).
By unanimous consent, the reference to Rule 26(a) at page 328, line 14, was changed to Rule 26(b).
By unanimous consent, the "served" at page 328, line 20, was changed to "serve" and "services" at page 328, line 21, was changed to "service."
The motion to approve the proposed amendments to N.D.R.Civ.P. 36 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
Staff explained that Fed.R.Civ.P. 37 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 37.
Judge Schneider MOVED to approve the proposed amendments to Rule 37. Judge Kleven seconded.
A member said that the language at page 336, lines 15-16, relating to the appropriate court for a discovery order involving a non-party, should be changed to give the parties an option to seek the order in the court where the action is pending.
Mr. Plambeck MOVED to amend page 336, line 15-16, to replace the word "must" in line 15 with "may" and to add language at the end of line 16: "or in the court where the action is pending." Mr. Dunn seconded.
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A member asked whether the words "if that court has jurisdiction" should be added to the motion text. A member replied that a court could not issue an order if it did not have jurisdiction.
Motion CARRIED.
The Chair advised the Committee that the proposal contained changes brought in from the federal rule that the Committee should take care to examine. The Chair pointed in particular to the requirement that a person seeking sanctions must have made a good faith attempt to resolve the matter without court involvement.
A member said that this new provision was a good idea because it would make lawyers think twice before making a motion for sanctions. The member said it is important not to waste the court's time and the provision puts the onus on the lawyers to work it out if they can.
A member said lawyers like to claim in their discovery motions that they tried to work the matter out before bringing it to the court and, as a practical matter, it is a good idea to try to negotiate discovery disputes.
The motion to approve the proposed amendments to N.D.R.Civ.P. 37 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 38, N.D.R.Civ.P. - JURY TRIAL OF RIGHT (PAGES 354-367 OF THE AGENDA MATERIAL)
Staff explained that Fed.R.Civ.P. 38 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 38.
Ms. Ottmar MOVED to approve the proposed amendments to Rule 38. Judge Kleven seconded.
Mr. Plambeck MOVED to retain language deleted in the proposal at page 356, lines 35-37. Judge Kleven seconded.
A member said the language should be retained because it makes it clear that a party cannot belatedly ask for a jury trial after minor amendment of the pleadings.
Motion CARRIED.
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The Chair pointed out that the federal rules revision had removed spelled-out numbers and replaced them with digits. The Chair asked if this practice was in line with the Committee's desires. Staff said the Committee in the past had generally spelled out single digit numbers and used digits for multiple digit numbers.
Mr. Plambeck MOVED to change the digits at page 355, lines 19-20, to spelled out numbers. Mr. Dunn seconded. Motion CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 38 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 39, N.D.R.Civ.P. - TRIAL BY JURY OR BY THE COURT (PAGES 368-372 OF THE AGENDA MATERIAL)
Staff explained that Fed.R.Civ.P. 39 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 39.
Judge Schneider MOVED to approve the proposed amendments to Rule 39. Mr. Dunn seconded.
The motion to approve the proposed amendments to N.D.R.Civ.P. 39 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 40, N.D.R.Civ.P. - ASSIGNMENT OF CASES FOR TRIAL (PAGES 373-377 OF THE AGENDA MATERIAL)
Staff explained that Fed.R.Civ.P. 40 had been amended and that changes consistent with the form and style of the federal amendments were now proposed for N.D.R.Civ.P. 40.
Judge McLees MOVED to approve the proposed amendments to Rule 40. Judge Schneider seconded.
Mr. Plambeck MOVED to delete the word "want" at page 374, line 18, and substitute the word "lack." Judge Kleven seconded. Motion CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 40 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 41, N.D.R.Civ.P. - DISMISSAL OF ACTIONS (PAGES 378-385 OF THE AGENDA MATERIAL)
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Staff explained that Fed.R.Civ.P. 41 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 41.
Ms. Ottmar MOVED to approve the proposed amendments to Rule 41. Mr. Dunn seconded.
The motion to approve the proposed amendments to N.D.R.Civ.P. 41 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 42, N.D.R.Civ.P. - CONSOLIDATION; SEPARATE TRIALS (PAGES 386-389 OF THE AGENDA MATERIAL)
Staff explained that Fed.R.Civ.P. 42 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 42.
Judge Kleven MOVED to approve the proposed amendments to Rule 42. Judge Schneider seconded.
A member said that the deletion of language relating to N.D.R.Civ.P. 54(b) was appropriate. The member said it was better to have the option of a separate trial in which to obtain a final judgment.
By unanimous consent, the hyphen was removed from the term "crossclaim" at page 387, line 18.
The motion to approve the proposed amendments to N.D.R.Civ.P. 42 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
RULE 43, N.D.R.Civ.P. - EVIDENCE (PAGES 390-397 OF THE AGENDA MATERIAL)
Staff explained that Fed.R.Civ.P. 43 had been amended and that changes consistent with the federal amendments were now proposed for N.D.R.Civ.P. 43.
Mr. Hoy MOVED to approve the proposed amendments to Rule 43. Judge Schneider seconded.
By unanimous consent, the word "testimony" at page 391, line 19, was deleted and replaced with the word "transmission."
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A member asked if the proposal contained an undefined standard: "for good cause in compelling circumstances." The member asked whether it should not be either "good cause" or "compelling circumstances." The member said that proving "compelling circumstances" would seem to require a more substantial showing than just "good cause."
A member said that the standard for allowing testimony by remote transmission may be too high considering the use of such testimony was increasing. The member said it may be more appropriate to allow the court to use its discretion in permitting remote testimony. A member replied it is important to have some standards to prevent unrestricted remote testimony, such as when the parties stipulate to such testimony but fail to involve the court in the matter until the last minute. The member said courts need a standard to guide the use of discretion.
Mr. Plambeck MOVED to delete the phrase "in compelling circumstances" at page 391, lines 15-16. Mr. Hoy seconded.
A member said combining the terms "good cause" and "compelling circumstances" created too many conditions and could set the bar too high for remote testimony. The member said that remote testimony is useful in many circumstances, such as when a witness is willing to testify but not willing to travel. The member said requiring "good cause" provided an adequate standard.
Motion CARRIED.
Mr. Dunn MOVED to delete subdivision (b) at pages 391-92, lines 20-28. Judge Kleven seconded.
A member said the material covered by subdivision (b) was covered in the Rules of Evidence.
Motion CARRIED.
The motion to approve the proposed amendments to N.D.R.Civ.P. 43 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.
The meeting adjourned at approximately 11:50 a.m., on January 30, 2008.
_________________________________
Michael J. Hagburg