TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 37, N.D.R.Civ.P., Failure to Make or Cooperate in Discovery; Sanctions
In September, the Committee approved proposed amendments to Rule 37 based on the federal electronic discovery amendments.
After these amendments were approved, a motion was made and carried to bring Rule 37 back for discussion of whether language exempting the state from monetary sanctions under the rule should be deleted. An amended draft of Rule 37, with the state exemption language deleted, is attached.
The state exemption has been part of the rule since it originally went into effect in 1957. It was based on language from the federal rule granting the federal government an exemption from monetary sanctions. The state exemption language was amended in 1970 to make it consistent with amended federal language. In 1980, the federal exemption was repealed by Congress and is no longer part of the federal rule. To date, the Committee has not addressed amending Rule 37 to follow the federal change.
At the time the state exemption was made part of the rule, and in 1970 when the exemption provision was amended, state sovereign immunity was in place in North Dakota. The doctrine was abolished by the Supreme Court in Bulman v. Hulstrand Const., 521 N.W.2d 632 (N.D. 1994). Subsequently, a statutory scheme was put in place to regulate lawsuits against the state. The scheme is contained in N.D.C.C. ch. 32-12.2, which is attached.
Under N.D.C.C. § 32-12.2-02(1), the state can be held liable for money damages in certain cases. N.D.C.C. § 32-12.2-02(3), however, provides a wide-ranging list of cases in which the state cannot be held liable for such damages.
Because the state is immune by statute from a variety of claims, retention of the monetary sanctions exemption in Rule 37 can be defended. On the other hand, given that the state can be held liable for money damages in certain cases, a blanket exemption from monetary sanctions for discovery violations may no longer be justifiable.
Staff submitted the proposed amendments to Ryan Bernstein, counsel to Governor Hoeven, for comment. Mr. Bernstein specifically stated that he had no comment on the rule proposal.