MINUTES OF MEETING
Joint Procedure Committee
September 27, 2012
TABLE OF CONTENTS
Rule 41, N.D.Sup.Ct.Admin.R., Access to
Court Records
3
Rule 604, N.D.R.Ev., Interpreter 5
Rule 704, N.D.R.Ev., Opinion on an Ultimate Issue 6
Rule 707, N.D.R.Ev., Analytical Report Admission;
Confrontation
6
Rule 4, N.D.R.Civ.P., Persons Subject to
Jurisdiction; Process; Service
7
Rule 45, N.D.R.Civ.P.,
Subpoena 8
Rule 11, N.D.R.Crim.P.,
Pleas 10
Rule 3.1, N.D.R.Ct.,
Pleadings 14
Order 16, N.D.Sup.Ct.Admin.O.,
Electronic Filing in the District Courts 14
Rule 801, N.D.R.Ev., Definitions 21
Rule 802, N.D.R.Ev., Hearsay Rule 21
Rule 803, N.D.R.Ev., Hearsay Exceptions; Availability of Declarant
Immaterial 22
Rule 902, N.D.R.Ev., Self Authentication 22
Rule 804, N.D.R.Ev., Hearsay Exceptions; Declarant
Unavailable 24
Rule 805, N.D.R.Ev., Hearsay Within Hearsay 25
Rule 806, N.D.R.Ev., Attacking and Supporting Credibility of
Declarant 26
Rule 807, N.D.R.Ev., Residual Exception 26
Rule 901, N.D.R.Ev., Requirement of Authentication or
Identification 26
Rule 903, N.D.R.Ev., Subscribing Witness Testimony 26
Rule 1001, N.D.R.Ev., Definitions 26
Rule 1002, N.D.R.Ev., Requirement of Original 27
Rule 1003, N.D.R.Ev., Admissibility of Duplicates 27
Rule 1004, N.D.R.Ev., Admissibility of Other Evidence of
Contents 28
Rule 1005, N.D.R.Ev., Public Records 28
Rule 1006, N.D.R.Ev., Summaries 28
Rule 1007, N.D.R.Ev., Testimony or Written Admission of
Party 29
Rule 1008, N.D.R.Ev., Functions of Court and Jury 29
CALL TO ORDER
The meeting was called to order at 9:00 a.m., on September 27, 2012, by the Chair, Justice Mary Muehlen Maring.
Present:
Justice Mary Muehlen Maring,
Chair
Honorable Laurie
Fontaine
Honorable John
Greenwood
Honorable William A.
Herauf
Honorable Debbie Kleven (afternoon
only)
Honorable Steven L. Marquart
Honorable Steven
McCullough
Honorable Thomas E.
Merrick
Honorable David E. Reich
Mr. Bradley Beehler
Mr. Larry L. Boschee
Mr. Daniel Dunn
Mr. Robert Hoy
Prof. Margaret Moore
Jackson
Mr. Richard H. McGee
Mr. Lonnie Olson
Ms. Joanne Hager Ottmar
Mr. Bruce D. Quick
Mr. Kent Reierson
Absent:
Honorable William McLees
Staff:
Mike Hagburg
Kim Hoge
PRELIMINARY MATTERS
The Chair discussed the schedule for the meeting and plans for the January meeting.
Judge Herauf MOVED to approve the minutes. Judge Reich seconded. The motion to approve the minutes CARRIED.
Staff explained that, based on the Committee's comments at the April meeting, staff prepared additional proposed forms to be used by people seeking to limit Internet access to certain criminal records. Staff presented the forms to the Committee.
Judge Herauf MOVED to adopt the proposed Affidavit of Personal Service form. Judge McCullough seconded. Motion CARRIED.
Ms. Ottmar MOVED to adopt the proposed Affidavit of Mailing form. Judge Herauf seconded.
A member asked whether it was necessary that service be by certified mail. A member said, because the motion would be made by a party in an existing action, service by certified mail may be unnecessary. The member said requiring certified mail could be a burden on a self-represented litigant. A member said this motion was no different from any other motion in a criminal action and certified mail was not required for other motions.
A member said one concern was that this motion could be submitted long after the charge was made and the state's attorney could be a different person than the one involved in the matter originally. The member said to have a certified mail requirement could provide proof that the motion was submitted. A member said that an alternative to the certified mail requirement would be to add language to the mailing affidavit form requiring that the motion documents be mailed to the state's attorney by name at the specific address of the state's attorney's office.
A member asked if it would be useful to add another form to the motion package to be sent to the state's attorney. The member said that this additional form would require the state's attorney to acknowledge receipt of the motion documents and indicate whether the state's attorney intended to contest the motion. The member said the state's attorney would be required to file the form and this would show the court that the state's attorney had received the motion and show the state's attorney's position.
A member said that the proposed forms were designed to be used when there had been an acquittal or dismissal. The member said that the suggested additional new form would likely be disposed of by the state's attorney because the case was closed. A member said, on the other hand, some state's attorneys were likely to oppose every motion just like some oppose every parole request. The member said that having an admission of service in the file would be useful.
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Judge Fontaine MOVED to amend the Affidavit of Service by Mail form to eliminate the certified mail requirement and to add language requiring the complete name and address of the state's attorney to be included in the form. Judge Herauf seconded. Motion CARRIED.
The motion to adopt the Affidavit of Mailing form CARRIED.
Judge Fontaine MOVED to adopt the proposed Notice of Motion form. Judge Marquart seconded.
The Chair said that at the last meeting a member had requested that the moving party's email address be included on the form. By unanimous consent, the Committee decided that the email address should be added to the signature block.
Judge Fontaine MOVED to amend the form to add language specifying N.D.R.Ct. 3.2's 14-day time deadline for response to the motion. Ms. Ottmar seconded. Motion CARRIED.
Motion to adopt the Notice of Motion form CARRIED.
Mr. Quick MOVED to adopt the proposed Motion and Brief form. Judge Herauf seconded.
Mr. Hoy MOVED to amend language on the last sentence of page 39 to read "has sustained or is likely to sustain." Judge Herauf seconded. Motion CARRIED.
Motion to adopt proposed Motion and Brief form CARRIED.
Mr. Hoy MOVED to adopt the proposed Affidavit in Support of Motion form. Judge Herauf seconded.
Judge Merrick MOVED to amend language to include (date) and (crime) in the blanks in paragraph (1) on page 41. Judge Herauf seconded. Motion CARRIED.
Mr. Hoy MOVED to add (date) to paragraph (2) on page 41 and to add language
Motion to adopt proposed form CARRIED.
Judge Herauf MOVED to adopt the proposed Findings of Fact and Conclusions of Law form. Ms. Ottmar seconded.
Mr. Hoy MOVED to add "or is likely to sustain" to paragraph III on page 44. Judge McCullough seconded. Motion CARRIED.
A member asked whether the paragraph instructing the court administrator to limit should be separated out into an order form. Members agreed that there should be a separate order document. By unanimous consent, staff was directed to draft a separate order form.
Judge Merrick MOVED to amend language to replace "court administrator" with "clerk of court" on page 44. Judge Herauf seconded. Motion CARRIED.
Motion to adopt proposed form CARRIED.
Judge McCullough MOVED to send the forms to the Supreme Court. Judge Herauf seconded.
RULE 604, N.D.R.Ev., INTERPRETER (PAGES 58-66 OF THE AGENDA MATERIAL)
The Committee approved form and style changes to Rule 604 at the April meeting. Staff presented proposed additional cross-references to the rule and provided the Committee with research on other court rules and statutes that deal with interpreters.
Judge McCullough MOVED to adopt the proposed amendments to Rule 604. Prof. Moore Jackson seconded.
A member said that the interpreter statute was obsolete and should be superseded by rule. The member said the statutory oath, for example, was different from the oath for interpreters from N.D.R.Ct. 6.10, which courts used. A member said that the Rule 6.10 oath did not offer an opportunity to affirm for interpreters. The consensus of the Committee was that it should address Rule 6.10 and the other administrative and procedural rules on interpreters at the next meeting.
The main motion CARRIED. The rule proposal will be made part of the Evidence
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RULE 704, N.D.R.Ev., OPINION ON AN ULTIMATE ISSUE (PAGES 67-79 OF THE AGENDA MATERIAL)
At the April meeting, the Committee discussed proposed amendments to Rule 704 intended to bar experts from testifying on whether a defendant's mental state satisfied an element of a crime. In response to the Committee's requests, staff provided additional research on the proposal and an alternate proposal intended to be consistent with the current rule and state statutes and case law.
Mr. Quick MOVED to adopt the proposed alternate draft. Judge Herauf seconded.
Staff explained why the federal drafters removed "inference" from the rule. The Chair directed the Committee to the federal explanatory note on the issue. A member said that it would be preferable to add similar language to the rule proposal so that if the issue came up in a case, the explanation about the removal of "inference" from the rule would be close at hand.
Mr. Hoy MOVED to add language from the federal explanatory to the rule at page 70, line 18. Judge Herauf seconded. Motion CARRIED.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 707, N.D.R.Ev., ANALYTICAL REPORT ADMISSION; CONFRONTATION (PAGES 80-98 OF THE AGENDA MATERIAL)
The Committee briefly discussed Rule 707 at the April meeting, but decided to defer any action on the rule until the United States and North Dakota Supreme Courts had the opportunity to rule on pending cases involving analytical reports. Staff presented the Committee with a summary of the decisions in the United States and North Dakota cases.
The Chair explained that the Court had attempted to clarify that the rule was intended to apply to "confrontational" purposes, not foundational. The Chair said there is confusion between defense and prosecution lawyers on whether failure to specify all witnesses involved in preparing a report amounts to a waiver of objections regarding unnamed witnesses and their contributions to the report. The Chair said it might be useful for staff to draft and the Committee to consider an amendment indicating that the rule addresses those individuals that are presenting testimonial material and not mere foundation.
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A member said the rule creates traps for the unwary on the defense and prosecution sides. The member said, with the way the case law has developed, the notice and demand requirement in the rule may be unnecessary. he Chair said one reason for the rule is that state statutes on admission of reports have not been changed even though automatic admission of reports is no longer allowed under the Constitution.
Judge Fontaine MOVED to table the rule until the January meeting. Mr. Olson seconded.
A member said the Committee needs more time to look at the case law and think about whether the rule needs to be modified. A member said it might be helpful if staff researched how other states have approached the issue.
Staff informed the Committee that Judge Nelson has requested that the Committee consider whether to include the substance of N.D.C.C. § 39-01-11 in Rule 4.
A member said there are several statutes that discuss means of substituted service. For example, statutes let parties serve the insurance commissioner when bringing suit against certain insurance companies. The member said a recent statute allows parties to serve the secretary of state when bringing suit against a company that no longer has authority to do business in the state. The member wondered where the Committee would draw the line on bringing substituted service statutes into the rules.
A member said a better approach to bringing the statutes into the rules would be to cross-reference the substituted service statutes in the rules so that parties and courts could more easily locate them. The member said having a rule for every specific situation would make no sense given the work the legislature has already done on substituted service statutes.
The Chair said that adding cross-references was problematic because there is no assurance that the Committee could locate every statute that should be cross-referenced. A
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By unanimous consent, the proposal was tabled until the January meeting to allow staff to research special service statutes to cross-reference.
RULE 45, N.D.R.Civ.P., SUBPOENA (PAGES 126-152 OF THE AGENDA MATERIAL)
Staff explained that Mr. Reierson had raised an issue regarding Rule 45 and its inconsistent treatment of the objection notice requirement. Staff presented two alternate proposals for rule amendments that would correct the inconsistency.
Mr. Reierson MOVED to adopt the proposed "Alternative A" amendments to Rule 45. Prof. Moore Jackson seconded.
A member said that, as it stands, it is not clear what notice needs to be provided in a deposition subpoena of a third party. It may also be easier under the rule to object to a subpoena to produce documents than it is to object to a subpoena for a deposition or a hearing. The member said that making it easy to object to a deposition subpoena can allow a third party to upset complicated planning by the parties in a case.
Mr. Reierson MOVED to amend line 13 on page 129 to add the word "only." Prof. Moore Jackson seconded.
A member said to limit the notice requirement to subpoenas duces tecum that request "only" documents, as proposed under the motion, would make it less likely that a third party could disrupt deposition plans in cases when the deponent is requested to bring documents to the deposition. The member said that if a person who was subpoenaed to attend a deposition and bring documents had objections, the person could still bring a motion to quash. The member said if the subpoena was for documents alone, the subpoenaed third party could make a "notice objection" and the burden would be on the party serving the subpoena to seek a court order compelling production. The member said this was reasonable because an objection to a subpoena to produce only documents would not interfere with deposition planning and scheduling and delay the progress of the action.
A member said that allowing an easier objection process when only documents are subpoenaed is reasonable because often a "documents only" subpoena is served on an institution like a bank or hospital, which may have confidentiality concerns about releasing documents.
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Mr. Reierson MOVED to amend line 162 on page 136 to add the word "only." Prof. Moore Jackson seconded. Motion CARRIED.
A member asked what was the advantage of having different notice requirements for document production subpoenas and deposition subpoenas. The member said it seemed more sensible to have the same notice requirements for all subpoenas. A member replied that allowing third parties to easily object to deposition subpoenas (rather than seeking a motion to quash) complicates the deposition scheduling process and delays progress of the action. The member said when seeking only documents, scheduling is not generally a concern and an objection would not unduly delay the action.
A member replied that if the notice was included as part of a deposition subpoena, at least the third party would be required to state any objections to a deposition within ten days rather than not showing up to the deposition. A member said that third parties with experience in the court system know that they can object to subpoenas, so providing the notice to them is not so important. The member said, however, that providing the notice is very important when the subject of the subpoena is not experienced with the court system because the notice explains their rights and evens the playing field somewhat for them.
A member said that the notice provision goes beyond just providing a third party with information about the right to object to a subpoena. The member said that by making an objection under the terms of the notice, the third party shifts the burden on the party seeking discovery to make a motion to compel. The member said if a party is doing a deposition and under tight scheduling restrictions and deadlines, the burden should be on the witness to seek protection. The member said the situation is different when seeking document production because there could be privileged information requested and the basis for an objection would be clearer. The member said it makes sense to apply a different standard for objections to document requests as opposed to requests for live testimony.
A member said that one approach to level the playing field would be to have a different notice for third parties subject to deposition subpoenas informing them of their right to make a motion to quash. This would inform them of their rights without shifting the burden to the party seeking testimony and delaying the action. A member said that the current rule seemed to allow a party to refuse to provide live testimony simply by providing an objection so the rule needed to be modified in some way to prevent possible delay of trials and depositions. The member said extending the notice requirement to all subpoenas would likely create this sort of delay.
The main motion CARRIED.
Mr. Beehler MOVED to send the rule to the Supreme Court immediately for consideration with the pending Annual Rules Package. Judge Herauf seconded. Motion CARRIED.
RULE 11, N.D.R.Crim.P., PLEAS (PAGES 153-224 OF THE AGENDA MATERIAL)
Staff explained that the Supreme Court had requested that the Committee address the issue of whether allowing Alford pleas is consistent with Rule 11. Staff presented the Committee with research on the question and with proposed amendments to Rule 11.
Judge Fontaine MOVED to adopt the proposed amendments to Rule 11. Mr. Olson seconded.
A member said that Alford pleas are not a big problem in cases when the defendant is represented, but that they are suspect when the defendant does not have a lawyer. A member said that many times a self-represented defendant will agree that they could be convicted based on the state's factual basis statement and so they plead guilty.
A member said the defendant does not even have to agree with the factual basis-under Alford a court can accept a guilty plea as long as the defendant understands what is happening. The member said the court can read a defendant's rights and the defendant confirm understanding, but that does not mean the defendant understands-it likely means the defendant is pleading guilty because the defendant wants to get out of court and go to work. The member said that a court should not be able to accept an Alford plea from a self-represented defendant.
A member said that the courts take many Alford pleas and that close to 50 percent of
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A member said the proposed amendments would essentially create a nolo contendere plea in North Dakota, even though it would still be called a guilty plea. The member said that under the Rules of Evidence, nolo pleas are treated differently than guilty pleas and that a nolo plea by whatever name should be treated like any other nolo plea under the evidence rules. A member said that the main difference between a nolo plea and a guilty plea in the federal system is that a nolo plea does not have the same collateral consequences (in civil cases) as a guilty plea.
Judge Herauf MOVED to amend line 38 on page 156 to add the word "guilty" before the word "plea." Ms. Ottmar seconded. Motion CARRIED.
A member asked whether a defendant who acknowledges a factual basis should also be required to acknowledge "guilt" rather than just admitting that there is a factual basis for a guilty plea. The member said this would differentiate a guilty plea entered based on "guilt" from an Alford plea.
Judge Greenwood MOVED to amend line 37 on page 156 to read: "acknowledges facts that support the guilty plea." Mr. Quick seconded. Motion CARRIED.
Mr. McGee MOVED to amend line 38 on page 156 to move the phrase "while maintaining innocence" to the beginning of the sentence. Ms. Ottmar seconded. Motion CARRIED.
A member said that, when a self-represented criminal defendant maintains innocence but still wants to plead guilty for the sake of convenience, the state must be required to present a factual basis for the guilty plea before the court can accept the plea. A member said that some courts will not accept a guilty plea if the defendant does not agree that the state's facts, if proven, could be the basis of a conviction. A member said that, under the Alford standard, the defendant does not need to agree that the state provided a factual basis before the court can accept the plea.
A member said that, under the language of the proposal, a court would be able to accept a guilty plea without the defendant agreeing that an adequate factual basis had been presented. A member said that a court could still refuse to accept a guilty plea if a defendant both denied guilt and did not accept the state's factual basis because allowing a guilty plea
A member said that the proposal and Alford allow a defendant to maintain innocence and plead guilty based on the defendant's own evaluation of what's in the defendant's best interests. A member said that maybe there should be a requirement that there be a best interest discussion on the record if the defendant chooses to plead guilty while maintaining innocence.
The Chair pointed to language in the syllabus of State v. McKay, 234 N.W.2d 853 (N.D. 1975), stating: "An individual accused of a crime may voluntarily, knowingly, and understandingly plead guilty to a crime even if he is unable to admit his participation in the acts constituting the crime, provided that evidence is introduced from which it can be concluded that defendant committed the crime." The Chair suggested that this standard could be integrated into the language of the rule.
A member said that, in determining whether there is a factual basis for a plea as required by Rule 11, courts already work with the state and the defendant to examine evidence "from which it can be concluded that defendant committed the crime." The member said the Committee should make sure that the language of the proposal reflects the requirements of case law.
A member said that many of the problems cited regarding Alford pleas could be avoided if all defendants were represented when a guilty plea is entered. The member said that public defenders are generally not assigned until after the initial appearance and that many guilty pleas are entered at the initial appearance.
A member asked the difference between an Alford plea and a nolo contendere plea. A member responded that there is no such thing as an Alford plea: there is a guilty plea with a factual basis that satisfies the standards set out in the Alford case. The member said that after McKay came out, it was standard practice for prosecutors to call witnesses every time a defendant pled guilty to establish the factual basis required by Alford. The member said that pleas under Alford used to be rare, but they are becoming more and more common. The member said that self-represented defendants do not know what Alford is: they want to plead guilty, but they do not acknowledge the factual basis.
A member said a nolo plea is a plea without the collateral civil consequences of a
A member asked what would be the downside of North Dakota recognizing nolo contendere pleas under the rules. A member said that in sexual offense cases, the defendant would not have to admit that they committed a sexual offense. Such an admission is a prerequisite for getting sex offender treatment. Staff said this was an objection raised in previous discussions of nolo pleas by the Committee. A member said that nolo pleas might not be a good idea in sex offense cases, but there are other types of cases where being able to take a nolo plea would be beneficial to both sides.
A member said that, from a defense standpoint, nolo pleas can be useful. The member said that a defendant accused of a sex crime might not be willing to admit guilt in a public courtroom, but would be willing to make a nolo plea and to later admit the offense in the privacy of treatment. A member said that the court must make it clear that an admission is necessary before treatment is possible when accepting a nolo plea in a sex crime case.
Judge Fontaine MOVED to amend line 39 on page 156 to add "and evidence exists from which it can be concluded that the defendant committed the crime" to the end of the sentence. Judge Herauf seconded.
A member asked whether the acknowledgment required in the proposal needs to be knowing, intelligent, and voluntary. The member said that this could be questioned in many of the cases where self-represented litigants enter Alford pleas.
A member said, if the whole rule is considered, it is already required that a plea must be voluntary. A member said that adding the proposed new language may mean that the court needs to have a separate colloquy on best interests and query whether the plea is knowing, intelligent, and voluntary. A member said the Alford case requires the defendant to "intelligently" conclude that a guilty plea is the defendant's best interest. A member said the Committee could consider adding language to reflect this requirement.
Motion CARRIED.
Mr. Quick MOVED to table. Judge Herauf seconded.
RULE 3.1, N.D.R.Ct., PLEADINGS (PAGES 225-238 OF THE AGENDA MATERIAL)
Staff explained that several clerks of court had expressed concerns about the Rule 3.1 requirement that pleadings be accompanied by proof of service. Staff presented proposed amendments to the rule that would insert language allowing pleadings to be filed without proof of service accompanying when this is allowed by statute or rule.
Mr. Hoy MOVED to adopt the proposed amendments to Rule 3.1. Judge Herauf seconded. Motion CARRIED.
Ms. Ottmar MOVED to send the rule to the Supreme Court immediately for consideration with the pending Annual Rules Package. Mr. Hoy seconded. Motion CARRIED.
Staff reported that the Supreme Court had amended Administrative Order 16 effective July 1 and that the Chair requested that the Committee review the amendments. Staff presented proposed amendments to the Order for the Committee's consideration.
Judge McCullough MOVED to adopt the proposed amendments to Order 16. Judge Marquart seconded.
A member asked whether the proposal by the Grand Fork's Sheriff's Office to electronically serve documents to health professionals involved in mental health cases through the Odyssey system was technically feasible. Staff said that a document filed through Odyssey could be emailed to anyone using the system's "carbon copy" feature, but a document could only be "served" through the system to a registered user.
A member asked if the attorneys on the Committee were using the Odyssey system. A member said that attorneys typically rely on their staff to file documents with the system.
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A member said that the new language in Order 16 seemed fine in general, but that it was going to be hard for lawyers to access the new material because they generally do not look at the administrative orders when they are looking for procedural instructions. The member said that Order 16 should be a rule, probably in the Rules of Court.
A member said that, in the federal system, lawyers are required to save a hard copy of the documents they submit so that they can establish the legitimacy of the signature. Staff said the philosophy behind the Odyssey electronic signature system was that anything an attorney wanted to have as an electronic signature was acceptable. A member said that judges are able to electronically sign Odyssey generated documents, but they cannot sign documents submitted by parties or attorneys.
A member said that the federal system accepts the /s/ type electronic signature as long as the attorney consents.
A member said service of discovery material should not go through the Odyssey system because it often is very voluminous paper. The member said that the order seems to require all service to be electronic in any matter filed after April 1, 2013, even if the served material is not filed.
A member said the problem with the provision allowing parties to seek relief when the rejection of a document leads to deadline problems is that, every time a document is rejected, the court might potentially have to get involved. The member said a better approach would be to enact a tolling provision to govern rejected documents.
Mr. Reierson MOVED to insert new language after line 24 on page 242 as follows: "The filing deadline is tolled until the submitted document is accepted or rejected, and if rejected for a technical defect, the document will be considered timely filed if resubmitted within three days after the notice of rejection." Ms. Ottmar seconded.
A member said the court should not have to get involved if the document is rejected
A member said that another glitch parties may face in attempting to file documents in Odyssey is that the policy between districts on how documents may be filed differs; some districts will allow documents in a given form to be filed while others will reject the same document. The member said that one case where this was an issue was a paternity case, which is a confidential file. The member said that one district prevented the attorney from filing into a confidential file via Odyssey. The member said filing policy needs to be made consistent across the state before electronic filing requirements are imposed.
Judge McCullough MOVED to amend the motion as follows: "If a document is rejected for a technical defect, the time for filing is tolled from the time of submission to the time the e-mail generated by the Odyssey system notifying the filer of rejection is sent. The document will be considered timely filed if resubmitted within three days after the notice of rejection." Mr. Quick seconded.
A member said that the federal system operates differently: When something is filed electronically, all the filed material is distributed to the other parties involved in the matter immediately. There is no delay caused by the need to accept or reject documents. The member said that the North Dakota system does not work efficiently and this creates a need to draft rules to account for the inefficiencies that are part of the system.
Motion CARRIED.
A member asked whether the term "electronic filing" at line 46 on 243 was redundant in light of the Committee's proposed amendments. A member said it would be good to retain the term because the tolling solution may not catch every problem and retaining the language would allow the court to craft a solution in the less usual case.
A member directed the Committee's attention to the clause at lines 39-40 on page 242 that states: "Electronic service is not effective if the party making service learns that the attempted service did not reach the person to be served." The member asked if this provision only applied if the server received some system message indicating that the service attempt failed or whether it applied no matter how the server learned of the failed service. The
Mr. Boschee MOVED to add language "through any means" after the word "learns" on line 39 on page 242. Judge Herauf seconded.
A member said the proposed change would allow a party to bring non-service of an item to the court's attention at whatever point the non-service was discovered. A member replied that, in the example cited, the party who attempted to serve the document would not have known that it was not delivered because they did not receive a non-delivery message.
A member said that all electronic service under the order will be done through the Odyssey system, not email. The member said that items served through Odyssey are tracked electronically and whether or not they reached their destination can be determined by checking the system record.
A member said the example cited referred to a discovery disclosure. A member said that it is not clear from the language of the order whether discovery documents should be served through Odyssey.
A member said that the provision at lines 39-40 on page 242 indicates that "service is not effective" if a party learns it did not reach the intended person. The member said that it is not clear from the order whether a service that is "not effective" could be fixed so that deadlines would be met. A member said there are rules with deadlines that are based on service and if service is "not effective" the deadline would not be met, even if the item had been filed.
A member asked whether the provision was necessary. The member said that a party that does not receive something is not served and such service could never be "effective." Staff said that when something is served through Odyssey, the receiver must take some sort of action to pick it up and this action establishes that the item was received.
A member said that provision seems to apply to items that are served by email outside the Odyssey system, in which case the receiver would have to agree to receive service in that manner. The member said the proposed amendment is necessary to protect people who have agreed to receive service by email outside of Odyssey.
Mr. Boschee MOVED to table his motion. Judge McCullough seconded. Motion CARRIED.
Mr. Boschee MOVED to amend lines
34-36 on page 242 as follows: "In any matter filed
After April 1, 2013, all documents filed electronically after the initiating pleadings must
be
served electronically through the Odyssey® system . . . ." Judge Herauf seconded.
A member asked whether the term "initiating pleadings" was clear. A member responded that the term was not defined, but that it was used earlier in the order in the electronic filing provision at lines 6-9 on page 241. Staff said that the order allowed initiating pleadings in a civil case to be filed electronically while the initiating pleadings in a criminal case may not be. A member explained that Odyssey does not allow initiating pleadings to be e-filed in criminal cases because they require complex offense coding that is done by court staff and not state's attorney's offices.
A member asked whether the complaint in a civil case needs to be filed electronically. Staff said that the order at present allows, but does not require, the complaint to be e-filed. A member said that the words "after the initiating pleadings" then may not be necessary in the provision at lines 34-36 on page 242. Members responded that the order would then conflict with N.D.R.Civ.P. 4 because it would require a complaint filed electronically to be served electronically.
A member questioned deleting the words "in any matter filed after" as proposed under the motion. The member said that removing the language would extend the order to a wider set of cases, because it would apply to all matters pending as of April 1, 2013.
A member said that in a recent case that was commenced by service, the defendant did not find out the case had been filed until the defendant got a notice of assignment of a judge. The member said that there is no provision in the order to let the other parties know that the complaint or answer has been filed. The Chair said the Odyssey system has the capability to notify attorneys whenever documents are filed in a case, as long as the attorneys are signed
A member asked who enters the opposing party information initially into Odyssey. The member observed that notices of documents entered into the system are regularly sent through Odyssey in ongoing cases. The members of the Committee were uncertain about who had the duty to associate all the parties and their attorneys with a new case. A member said that attorneys are not required to register for the Odyssey system now and if people who are not registered are taking part in a case, they do not receive notifications through Odyssey. A member looking at the Odyssey portal said that a party filing a document can associate the names of attorneys registered with the system with the case.
A member said that one reason the Court Technology Committee proposed the changes to Order 16 was in order to compel parties to e-file materials so that the clerks no longer need to spend so much of their time scanning and filing documents. The member said the second reason was to get all court users into the Odyssey system so that e-service is possible in most cases.
Motion CARRIED.
Mr. Reierson MOVED to add the word "filed" after the word "documents" at line 6 on page 241. Ms. Ottmar seconded.
Ms. Moore Jackson MOVED to amend the motion by deleting "in any matter filed" from the beginning of line 6 on page 241. Mr. Boschee seconded.
A member said that the proposed amendment would make the e-filing requirement apply to all active cases as of April 1. A member said this may not be in line with what the Supreme Court wants. A member said that the Committee will probably be considering this order for years. A member said that all the cases currently in the system are being converted to electronic files by scanning in documents, so it makes sense to require documents to be filed in electronic form. A member said that some older lawyers are still doing all their business on paper. A member pointed out there was an exception in the order that would allow attorneys to get court approval to continue filing in paper.
Motion to the motion CARRIED. Motion CARRIED.
A member said that exempting self-represented litigants from e-filing was a concern because some of them are experts with computers and capable of e-filing. The member said the language of the order seemed to suggest self-represented litigants are incapable of e-filing. A member replied that the courts may not want the self-represented litigants registering for Odyssey access. A member said that the order allowed self-represented litigants to file on paper but did not require it.
A member said that an alternate approach would be to allow self-represented litigants to request an exemption from e-filing rather than giving them a blanket exemption. A member responded that the courts would prefer not to have to handle requests from every self-represented litigant to allow paper filing.
Mr. Beehler MOVED to have Order 16 made part of the Rules of Court. Judge Kleven seconded. Motion CARRIED.
A member asked why the order requires filing fees to be paid by credit or debit card and does not allow cash payments. The Chair explained that electronic payment is part of e-filing, but that it is required only if the initiating pleadings are e-filed. Staff said a party can still pay the filing fee in cash because the order does not require initiating pleadings to be e-filed. A member said the rule, and the card payment requirement, only applied to electronic filing.
A member returned to the issue of whether a party should give notice of filing the complaint. A member said if a party serves the complaint and files it right away, the party would not know who to notify because the answer would not have been returned.
A member said that it was acceptable to require paragraph numbers for original documents prepared by the party, but that the language at lines 17-18 on page 241 seemed to require paragraph numbers even on supporting documents, such as a copy of a contract that might be submitted with a complaint. A member said exhibits would be submitted in some sort of graphic format, such as a .pdf, and their formatting would not be changed through the process of electronic submission, so paragraphs numbers would not be needed.
A member asked whether this meant that every document prepared by an attorney, including briefs and affidavits, would need to have paragraph numbers. A member replied that this is what the language on lines 17-18 said. A member suggested that language limiting the paragraph number requirement could be added to the provision.
A member said that the suggested language might cause more confusion, such as when an exhibit document, such as a contract, was originally created by a party. The suggested language could be interpreted to mandate that paragraph numbers be added to the document. A member said it was unlikely that the existing language on lines 17-18 would be interpreted to require paragraph numbers to be added to an old document submitted as an exhibit. A member said that the word "documents" could be changed to "pleadings" and this might put a limit on the number of documents for which paragraph numbers are required.
Motion WITHDRAWN.
The main motion CARRIED.
Judge McCullough MOVED to send the proposed amendments to the Supreme Court immediately. Judge Herauf seconded. Motion CARRIED.
RULE 801, N.D.R.Ev., DEFINITIONS (PAGES 247-259 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 801 based on the amendments to the federal rule. Staff explained that the proposal retained North Dakota's existing rule that prior inconsistent statements may be used as substantive evidence in civil cases and, if the prior statement was made under oath, in criminal cases. Staff said that the proposal contained some new language about evidence in conspiracy cases.
Mr. Quick MOVED to adopt the proposed amendments to Rule 801. Prof. Moore Jackson seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 802, N.D.R.Ev., HEARSAY RULE (PAGES 260-262 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 802 based on the amendments to the federal rule.
Judge McCullough MOVED to adopt the proposed amendments to Rule 802. Judge Kleven seconded.
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Staff presented proposed amendments to Rule 803 based on the amendments to the federal rule. Staff explained that there was new language in the proposal relating to certifications made under Rule 902.
Judge Kleven MOVED adopt the proposed amendments to Rule 803. Judge Marquart seconded.
A member said that Rule 902 should be discussed first before considering Rule 803 to examine the issue of certifications.
Mr. Boschee MOVED to table the rule and to discuss Rule 902 first. Mr. Quick seconded. Motion CARRIED.
RULE 902, N.D.R.Ev., SELF AUTHENTICATION (PAGES 335-346 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 902 based on the amendments to the federal rule. Staff explained that the proposal contained new paragraphs (10) and (11), which would allow documents to be "certified."
Mr. Quick MOVED to adopt the proposed amendments to Rule 902. Judge Herauf seconded.
A member said if the amendments are adopted the explanatory note should reflect that they represent a substantive change. A member asked whether there was a statute or rule that provides for certification in North Dakota. A member responded that the use of affidavits is currently standard practice in the state, while the federal system has a statute that allows "declarations" to be made under penalty of perjury without the need for notarization. The member said the term "certification" includes such declarations and also affidavits.
A member suggested that language be added to the explanatory note to clarify that the term "certification" includes affidavits. A member asked where to find the authority for "certification" in a statute or a rule, given that the proposed language refers to these. A
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A member said the Committee could consider a rule defining certification so that it was clear what Rule 803 and 902 addressed. A member said that the term "certification" could be replaced by "affidavit" in these rules and that would also bring clarity.
Mr. Boschee MOVED to delete "a certification of the custodian or another qualified person that complies with a statute or a rule prescribed by the North Dakota Supreme Court" at lines 97-98 on page 340 and to substitute "an affidavit." Mr. Reierson seconded.
A member said there is a difference between a certification and an affidavit. A member said that medical records usually are certified as a true and correct copy. A member said that the intent of allowing "certification" was to allow records to be admitted with all of the elements of the business records exception satisfied and with no need to call a foundational witness to testify.
A member pointed to N.D.C.C. § 31-04-10, "Form and contents of certificate for certifying copies to be used as evidence." The member said that this sort of certificate, which is not an affidavit, is the one used by custodians of medical records. A member said that this type of certification would establish that records were true and correct copies, but it would not meet the time or knowledge elements of the business records exception. The member said the type of certification referenced in the federal rule is intended to fully satisfy all elements of the business records exception and to make it unnecessary to call a foundational witness.
A member said that certification under N.D.C.C. § 31-04-10 would be consistent with the authentication standard of Rule 902 but it would be inadequate to fulfill the foundational standard for business records in Rule 803. A member said that the federal definition of certification, as the term is used in the federal evidence rules, includes statutory declarations and affidavits, which are made under penalty of perjury.
A member suggested that the rule could refer to an affidavit or a certification. A member said a certification seems to mean something more than an affidavit. A member asked whether both the affidavit and certification need to comply with a state statute or rule. A member said perhaps a better approach than adding affidavit to the rule would be to define certification in the explanatory note as including affidavits. The member said this would give flexibility if there were additional forms of certification adopted later by the legislature or court. A member said that both "affidavit" and "certification" were already defined in N.D.C.C. ch. 31-04.
A member asked for an example of a "declaration." A member replied that, in federal court, when medical records are produced after an authorization, the custodian fills out a declaration under penalty of perjury that states that the records were kept in the ordinary course of business along with the other elements of the business records exception.
A member pointed out the notes of the federal advisory committee indicate that a "declaration that satisfies 28 U.S.C. 1746" would satisfy the certification requirement of the federal rule. A member said this indicated that the federal certification requirement demanded something more than certification of a true and correct copy. A member said that the 28 U.S.C. 1746 declaration was an unsworn declaration made under penalty of perjury.
A member said that if a minor amendment of the proposed language was made to allow certifications under N.D.C.C. § 31-04-10 for authentication and affidavits, this could address the concerns expressed by the Committee. A member said that the federal rule's definition of certification seemed to require a declaration made under the penalty of perjury that included all the requirements of the business records exception, which is more than is required by N.D.C.C. § 31-04-10. A member said that, unless the Committee adopted the federal definition, it would be necessary to follow the state statutory definition in interpreting the rule. A member said that the new language would not make sense unless it required certification of all the elements of the business records exception.
The Chair suggested that staff research the definition of certification under state and federal statutes and develop a definition for incorporation into the rule. Staff said that if a definition satisfactory to the Committee was developed it could be substituted for the "statute or rule" language that is currently part of the proposal. The Chair indicated that the definition would need to incorporate affidavits, certification and declarations as discussed by the Committee. A member said that reference to federal rule commentary might be helpful in developing a definition.
Judge Fontaine MOVED to table the proposed amendments to Rule 902. Mr. Quick seconded. Motion CARRIED.
RULE 804, N.D.R.Ev. HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE (PAGES 296-312 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 804 based on the amendments to the
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Judge Herauf MOVED to adopt the proposed amendments to Rule 804. Judge Marquart seconded.
Judge Merrick MOVED to delete the word "but" from the beginning of the sentence at line 36 on page 298. Judge McCullough seconded. Motion CARRIED.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 805, N.D.R.Ev., HEARSAY WITHIN HEARSAY (PAGES 313-315 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 805 based on the amendments to the federal rule.
Mr. Olson MOVED to adopt the proposed amendments to Rule 805. Ms. Ottmar seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
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Staff presented proposed amendments to Rule 806 based on the amendments to the federal rule.
Mr. Quick MOVED to adopt the proposed amendments to Rule 806. Judge Herauf seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 807, N.D.R.Ev., RESIDUAL EXCEPTION (PAGES 321-324 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 807 based on the amendments to the federal rule.
Judge McCullough MOVED to adopt the proposed amendments to Rule 807. Mr. Hoy seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
Staff presented proposed amendments to Rule 901 based on the amendments to the federal rule.
Ms. Ottmar MOVED to adopt the proposed amendments to Rule 901. Judge Reich seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 903, N.D.R.Ev., SUBSCRIBING WITNESS TESTIMONY (PAGES 347-350 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 903 based on the amendments to the federal rule.
Judge Marquart MOVED to adopt the proposed amendments to Rule 903. Judge Kleven seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 1001, N.D.R.Ev., DEFINITIONS (PAGES 351-359 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 1001 based on the amendments to the
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Judge Kleven MOVED to adopt the proposed amendments to Rule 1001. Judge Herauf seconded.
A member asked about the use of the word "article" in the proposed text of the rule. Staff replied that "article" in the evidence rules was used to describe a set of rules, such as the 800 series or 1000 series rules. A member said that "article" was an odd choice for a word to describe a set of rules. A member said that it was used in the text of the federal rules from which the proposed amendments were derived.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 1002, N.D.R.Ev., REQUIREMENT OF ORIGINAL (PAGES 360-364 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 1002 based on the amendments to the federal rule.
Mr. Beehler MOVED to adopt the proposed amendments to Rule 1002. Judge McCullough seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 1003, N.D.R.Ev., ADMISSIBILITY OF DUPLICATES (PAGES 365-369 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 1003 based on the amendments to the federal rule.
Judge Herauf MOVED to adopt the proposed amendments to the Rule 1003. Mr. Beehler seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
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Staff presented proposed amendments to Rule 1004 based on the amendments to the federal rule.
Judge McCullough MOVED to adopt the proposed amendments to Rule 1004. Mr. Beehler seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 1005, N.D.R.Ev., PUBLIC RECORDS (PAGES 377-381 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 1005 based on the amendments to the federal rule.
Judge Fontaine MOVED to adopt the proposed amendments to Rule 1005. Judge McCullough seconded.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 1006, N.D.R.Ev., SUMMARIES (PAGES 382-386 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 1006 based on the amendments to the federal rule.
Ms. Ottmar MOVED to adopt the proposed amendments to Rule 1006. Judge Greenwood seconded.
Judge McCullough MOVED to delete the word "and" from the beginning of the last sentence at line 11 on page 383. Mr. Dunn seconded. Motion CARRIED.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
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Staff presented proposed amendments to Rule 1007 based on the amendments to the federal rule.
Judge McCullough MOVED to adopt the proposed amendments to Rule 1007. Judge Herauf seconded.
By unanimous consent, the word "however" was deleted from line 17.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
RULE 1008, N.D.R.Ev., FUNCTIONS OF COURT AND JURY (PAGES 391-397 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 1008 based on the amendments to the federal rule.
Mr. Beehler MOVED to adopt the proposed amendments to Rule 1008. Judge Herauf seconded.
By unanimous consent, the word "but" was deleted from line 13.
The main motion CARRIED. The rule proposal will be made part of the Evidence Rules Package, which will be sent to the Supreme Court when complete.
The meeting adjourned at approximately 3:00 p.m., on September 27, 2012.
________________________________
Michael J.
Hagburg
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