TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 26, N.D.R.Civ.P., General Provisions Governing Discovery
The "triggering event" for a scheduling conference under Fed.R.Civ.P. 16 is completion of the mandatory Fed.R.Civ.P. 26 discovery planning conference. The discovery planning conference is also a prerequisite to the commencement of discovery itself in the federal system.
At the January meeting, a Committee member suggested that the Committee discuss whether having a "meet and confer" planning conference requirement in North Dakota would be advisable if commencement by filing is adopted. Numerous commentators on the new federal electronic discovery rules have noted that the federal "meet and confer" requirement is a key component in the discovery process, especially when discovery of electronically stored material is an issue.
The attached Rule 26 proposal includes amendments that would implement a meet and confer requirement based on the federal rule. The following amendments are proposed:
Amendments to Rule 26(d) would prohibit parties from seeking discovery prior to completion of a discovery planning conference.
Amendments to Rule 26 (f) would delete the current optional discovery conference provisions and replace them with mandatory discovery planning conference language based on the federal rule.
Amendments that would implement a system of initial disclosures such as are used in the federal system are not included. In the past, the Committee has expressed a preference for continued unrestricted use of discovery methods such as depositions and interrogatories instead of requiring initial disclosures. The Committee may wish to discuss whether requiring initial disclosures would be advisable if commencement by filing is adopted.