TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: ABA/NCSTJ Discovery Guidelines
The American Bar Association's National Conference of State Trial Judges completed work on its Discovery Guidelines for State Courts in late 2001. Chief Justice VandeWalle has forwarded the Guidelines to the Committee for review.
The Guidelines are based on innovations in discovery rules made by the federal courts and by several states. The Guidelines, however, are not written in rule form but as concepts. The rules from which the Guidelines grew are much more complex and detailed than the Guidelines themselves.
As a preliminary step to possible incorporation of the Guidelines into North Dakota's discovery rules, it seems appropriate that the Committee examine the Guidelines themselves and determine whether North Dakota should accept any or all of the Guideline concepts. With such guidance from the Committee, staff will then be able to begin work drafting proposed amendments to rules and/or rule commentary.
Each party to an action shall make initial disclosure of discoverable information relevant to its claims and defenses asserted in the action, except on order of the court for good cause shown.
In jurisdictions adopting simultaneous disclosure, the parties should make disclosures with respect to the disputed facts alleged with particularity in the pleadings. In jurisdictions adopting sequential disclosure, the particularity prerequisite will be provided by the opposing party's previous written disclosures rather than the pleadings. Without waiting for a discovery request or court order, attorneys for all parties should disclose within specified time periods the following information: (1) the legal theory underlying each claim or defense; (2) the names and addresses of persons likely to have discoverable information; (3) identification by category and location of documents and tangible items relevant to the disputed facts stated with particularity; (4) itemization of damages; (5) agreements, written or otherwise; (6) insurance policies or cover sheets.
Subject to ruling by the court a party need not disclose information subject to a claim or objection (1) based on privilege or work product; (2) that the disclosure sought is unreasonably cumulative or duplicative; (3) that the information is obtainable from another source that is more convenient, less burdensome, or less expensive; or (4) that the burden or expense of disclosure outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of issues at stake in the litigation, and the importance of the disclosure in resolving the issues. Exceptions to disclosure in appropriate cases should be available on motion of a party. All counsel should have a continuing duty to disclose new information and documents and to supplement or correct information previously disclosed.
North Dakota does not require initial disclosures of discoverable information. See N.D.R.Civ.P. 26.
Initial disclosure of discoverable information is probably the most complicated topic addressed under the discovery guidelines. Fed.R.Civ.P. 26(a) seems to be the first rule that required initial disclosure. Under Fed.R.Civ.P. 26(a)(1), four categories of early disclosures must be made while eight categories of civil cases are exempt from the disclosure requirement. Fed.R.Civ.P. 26(a)(2) covers additional disclosures of expert testimony and Fed.R.Civ.P. 26(a)(3) covers trial witness and evidence disclosures.
Deadlines for Fed.R.Civ.P. 26(a) disclosures vary by type: the 26(a)(1) "early" disclosure deadline is dictated by the timing of the mandatory discovery conference, while expert and trial disclosures must be made by a given time before the trial date.
The NCSTJ looked most closely at the discovery rules of three states in formulating the Guidelines: Alaska, Arizona and Illinois. Arizona was the first of these states to require initial disclosure of discoverable information. Ariz.R.Civ.P. 26.1(a) requires wide ranging disclosures in nine different informational categories. Ariz.R.Civ.P. 26.1(b)(1) requires the disclosures to be made within 40 days after filing of a responsive pleading. Ariz.R.Civ.P. 26.1(b)(2) imposes a continuing duty to disclose newly discovered information that falls within the parameters of Ariz.R.Civ.P. 26.1(a) within 30 days of the discovery of such information.
Ariz.R.Civ.P. 26.1 is a freestanding rule, separate from Arizona's general discovery rule. Alaska, on the other hand, followed the federal lead and included its initial disclosure requirements in Alaska R.Civ.P. 26. In structure, Alaska R.Civ.P. 26(a)(1) is very similar to its federal counterpart: it requires early disclosure of seven categories of information, with a disclosure deadline based on the timing of a mandatory discovery conference. Alaska R.Civ.P. 26(a)(2) requires expert testimony disclosures and Alaska R.Civ.P. 26(a)(3) requires trial witness and evidence disclosures, with deadlines to be set by the court.
The NCSTJ materials suggest that it looked most closely at Illinois' rules when it devised the Guidelines. Yet, Illinois' initial disclosure rule does not apply to all cases instead, Ill. S.Ct.R. 222 is a freestanding rule applicable only to certain civil case where the amount at issue is less than $50,000. Ill. S.Ct.R. 222(d) requires initial disclosures of information in nine categories essentially the same categories of information listed in Ariz.R.Civ.P. 26.1. Ill. S.Ct.R. 222 (c) requires the disclosures be made within 120 after a responsive pleading is filed.
Should North Dakota integrate an initial disclosure requirement into its discovery rules in accordance with Guideline 1?
If the Committee decides that accepting Guideline 1 would be appropriate, it may also wish to discuss whether North Dakota should take an approach like the federal government and Alaska (integrating initial disclosure rules into the general rule, dividing up disclosures into different classes, and having the court set disclosure times for the different classes of disclosures) or an approach like Arizona and Illinois (requiring fairly broad range of disclosures to be made within a given time and then imposing a duty to disclose additional information as it is discovered).
Further, the Committee may wish to consider whether certain types of civil cases (domestic matters, for example) should be exempt from any initial disclosure requirement imposed.
No formal discovery request should be permitted until counsel for the parties hold a mandatory early discovery conference to resolve disclosure disagreements and develop a binding discovery plan in writing.
This guideline requires counsel to take the initiative in making disclosure, resolving disclosure disputes, and developing a discovery plan in writing for submission to the court before initiating costly and time-consuming discovery requests. The conference should be held within a court-specified time in order to facilitate full disclosure by all parties as mandated. Disagreement over certain elements of a discovery plan should not prevent discovery from proceeding on those elements as to which there is no disagreement. This guideline will save the time of court and counsel and obviate the need for many discovery hearings; it will effectuate the mandatory disclosure guideline. The court always retains authority to order discovery in emergency matters.
North Dakota does not require parties to engage in a discovery conference before discovery begins. See N.D.R.Civ.P. 26(f). Three of the jurisdictions the NCSTJ studied in developing the Guidelines require parties to meet to discuss discovery and formulate a discovery plan:
Fed.R.Civ.P. 26(f) requires the parties to meet "as soon as practicable" to develop a plan covering all aspects of discovery.
Alaska R.Civ.P. 26(f) requires the parties to meet no later than 14 days before the mandatory scheduling conference to discuss discovery and alternative dispute resolution.
Ill. S.Ct.R. 201(k) requires the parties to "facilitate" discovery and attempt to resolve all discovery disputes among themselves and Ill. R.Civ.P. 218 requires an initial case management conference "within 35 days after the parties are at issue."
Arizona takes more of a hands-off approach. Ariz. R.Civ.P. 26.1(b)(1) suggests that parties meet to exchange initial disclosures. Ariz. R.Civ.P. 33.1(b) limits interrogatories and requires parties to meet if additional interrogatories are desired. However, a "comprehensive pretrial conference" is optional under Ariz. R.Civ.P. 16 (c). Should North Dakota integrate some sort of discovery conference requirement into North Dakota's rule in accordance with Guideline 2?
It should be noted that the mandatory discovery conferences under the federal, Alaska and Illinois rules discussed above all exist as a prelude to court supervised scheduling conferences. Guideline 4 (to be discussed below) requires court supervised scheduling conferences. At its April meeting, the Committee rejected proposed rule amendments that would have required such scheduling conferences.
Discovery should be limited unless the court, on motion of a party, permits expanded discovery in an appropriate case.
This guideline seeks to avoid the "one-size-fits-all" fallacy. All unlimited jurisdiction cases would start out in the same primary category with limited discovery after counsel for the parties satisfy the initial disclosure and discovery conference requirements. In this limited discovery category, each party would be restricted to a specific number of depositions with limitation as to duration, except with a judge's permission or by agreement of the parties. Similarly, interrogatories would be restricted in number, including subpart. The number of expert witnesses called by each party would likewise be limited. It is anticipated that the identification of documents under guideline No. 1 will significantly reduce the need for exploratory requests for production. The majority of cases should not require expanded discovery. All discovery must be completed within a standard period of time. Upon completion of discovery, counsel would be required to certify the case ready for pretrial and trial assignment, except where a date has previously been established or another system exists to assure a prompt trial date.
The secondary category of expanded discovery would be reserved for a relatively small number of cases as designated by the court on motion of a party. When so designated, the court may permit specific expanded discovery after holding a court-supervised discovery conference.
There do not seem to be any hard, up front, limits on the amount discovery allowed in a North Dakota case. See N.D.R.Civ.P. 26, 30, 33. N.D.R.Civ.P. 26(g), however, implicitly requires the parties to conduct only as much discovery as is required under the circumstances of the case.
The jurisdictions the NCSTJ studied in developing the Guidelines place some up front limits on discovery. Leave of court or the agreement of the other parties must be obtained to exceed these limits:
Fed.R.Civ.P. 30(a)(2) limits depositions to ten per party, Fed.R.Civ.P. 33 limits interrogatories to 25 per party;
Alaska R.Civ.P. 30(a)(2) limits depositions to three per party unless the deponent is a party, expert, treating physician or document custodian, Alaska R.Civ.P. 33(a) limits interrogatories to 30 per party;
Ariz. R.Civ.P. 33.1 limits interrogatories to 40 per party;
Ill. S.Ct.R. 213(c) limits interrogatories to 30 per party, Ill. S.Ct.R. 220(f) places additional limits on interrogatories and depositions in cases with less than $50,000 at issue.
Should North Dakota integrate discovery limitations into its rules in accordance with Guideline 3?
If the Committee decides integrating additional rules in accordance with Guideline 3 would be appropriate, it may wish to discuss what sort of discovery limitations would be reasonable as a starting point. Ill. S.Ct.R. 220 may be a good reference point for discussion because it integrates discovery limitations in one place.
The court shall promptly schedule a supervised discovery conference at which counsel shall submit a reasonable and comprehensive discovery plan, subject to court approval, which shall designate the time, place, and the most cost effective manner of discovery; the dates for exchange of expected trial witnesses; the dates and sequence for disclosure of experts and written reports containing their opinions; and the deadline for completion of all discovery. The court shall also schedule the dates for pretrial conference and trial.
This guideline permits the court to tailor discovery to the specific requirements of the case. Development of a discovery plan with discovery completion and trial dates is essential.
A supervised discovery conference enables the court to control discovery expense and delay. For example, the judge may order out-of-state witnesses or experts to be deposed in-state, thus avoiding the time and expense required for travel of counsel. Similarly, the court may permit telephone depositions or direct the use of videotaped depositions.
North Dakota does not require court supervised discovery conferences. See N.D.R.Civ.P. 16. As noted above under Guideline 2, the jurisdictions that require parties to meet and discuss discovery also require court sponsored scheduling conferences. See Fed. R. Civ. P. 16(b); Alaska R. Civ. P. 16(b)(2) and Illinois S.Ct.R. 218. On the other hand, Ariz. R.Civ.P. 16 makes scheduling conferences optional. Should North Dakota integrate court sponsored discovery conferences into its rules in accordance with Guideline 4?
If the Committee decides that accepting Guideline 4 would be appropriate, it may also wish to discuss what sort of parameters should be set for court sponsored discovery conferences. The Committee may find Alaska's Rule 16 useful in such a discussion because it is fairly detailed in setting out what goes on at a court sponsored discovery conference.
The court should not entertain discovery motions until counsel have met and conferred in a good faith effort to resolve discovery disputes and movant has filed a detailed certificate of compliance.
This guideline requires counsel to make a reasonable and good faith effort to meet and confer in order to improve communication and resolve discovery disputes before utilizing the time-honored but wasteful practice of litigating such issues. The supporting certificate must state specific acts of counsel to effectuate the standard.
Neither N.D.R.Civ.P. 26 nor N.D.R.Civ.P. 37 require counsel to attempt to settle discovery disputes prior to making discovery motions. North Dakota, however, seems to have an "optional" good faith consultation requirement that is imposed when parties participate in optional discovery conferences under N.D.R.Civ.P. 26(f).
The federal government along with Alaska, Arizona and Illinois all seem to have accepted the principle behind Guideline 5.
It is a prerequisite to making a motion for sanctions under Fed. R.Civ.P. 37(a)(2) for parties to certify that they have conferred and attempted resolve the discovery dispute. Such certification is also required before applying for a protective order under Fed. R. Civ. P. 26(c). Alaska R.Civ.P. 37(a)(2)(A) and 26(c) and Ariz. R.Civ.P. 37(a)(2)(c) and 26(g) impose similar good faith discussion requirements. Ill. S.Ct.R. 201(k) probably provides the most straightforward statement of the Guideline 5 principle. It reads:
Reasonable Attempt to Resolve Differences Required. The parties shall facilitate discovery under these rules and shall make reasonable attempts to resolve differences over discovery. Every motion with respect to discovery shall incorporate a statement that counsel responsible for trial of the case after personal consultation and reasonable attempts to resolve differences have been unable to reach an accord or that opposing counsel made himself or herself unavailable for personal consultation or was unreasonable in attempts to resolve differences.
Should North Dakota impose a mandatory good faith consultation requirement in accordance with Guideline 5?
If the Committee decides that accepting Guideline 5 would be appropriate, it may also wish to discuss whether to incorporate piecemeal consultation requirements such as found in the federal, Alaska and Arizona rules or a comprehensive consultation requirement as found in the Illinois rules.
The court must actively control the discovery process and should not hesitate to impose sanctions when appropriate.
Recent studies and surveys of counsel have revealed that a major discovery problem is the perception that judges are unwilling to resolve discovery disputes and are reluctant to impose meaningful sanctions for discovery abuse. Abuse can only be prevented if judges are willing to become involved. If the court ignores abuse, opposing counsel are encouraged to "fight fire with fire."
Judges should adopt efficient techniques for expeditious determination of discovery snags such as telephone conferences with the court during depositions and otherwise, and fast transmission of motions, briefs, and other documents by FAX.
North Dakota's rules allow the court to impose sanctions on parties who do not act in good faith in the course of discovery. See N.D.R.Civ.P. 26(g), 37. Fed. R.Civ.P. 26(g) requires parties to certify that all discovery requests and disclosures are made in good faith, and Fed. R.Civ.P. 26(g)(3) allows the court to sanction parties who do not act in good faith in the course of discovery. According to the official comments, Fed. R.Civ.P. 26(g) is intended to impose an affirmative duty on parties to engage in discovery in a responsible manner while explicitly encouraging the court to curb discovery abuse by imposing sanctions.
Alaska R.Civ.P. 37 allows sanctions for failure to cooperate in discovery and subdivision (g) specifically allows sanctions for "unreasonable, groundless, abusive or obstructionist conduct during the course of discovery." Arizona uses similar language in Ariz. R.Civ.P. 26(f).
Ill. S.Ct.R. 201 allows the court "on its own initiative without notice" to supervise "all or any part of any discovery procedure." Ill. S.Ct.R. 219(c) gives the court substantial power to impose sanctions against any party or "person" who "unreasonably fails to comply" with any of the discovery rules or any discovery order. The court may impose sanctions on motion or "on its own initiative." The Illinois rules seem to be the only ones in the jurisdictions that have been discussed that encourage the court to supervise the discovery process when needed.
North Dakota already gives the court broad sanctioning powers when discovery abuses are established. Should the North Dakota rules also encourage the courts to take a greater role in supervision of discovery in accordance with Guideline 6?
Counsel should at all times seek to control unnecessary expenses and delay.
Counsel have a duty to realistically evaluate a case on a continuing basis to assure that the cost of litigation is not disproportionate to the significance of the controversy. A substantial criticism of today's practice is excessive cost. Controlling costs is a responsibility which can only be addressed by the lawyers handling the litigation. Moreover, the expense of litigating should not be artificially driven up to defeat the ends of justice by placing an action unnecessarily beyond the reach of a litigant.
Guideline 7 obviously is a statement of a goal rather than a concrete requirement that could be enforceable as a rule. As touched on above, the federal government and the other jurisdictions that have been discussed in this memo have rules forbidding behavior that would cause unnecessary expenses and delay.
North Dakota already has adopted N.D.R.Civ.P. 26(g), which implicitly requires attorneys to conduct only as much discovery as is reasonable.
Fed. R.Civ.P. 26(g)(2) requires attorneys to certify that all discovery requests, responses and objections are not designed to harass, delay or increase expenses and that they are reasonable "given the needs of the case." As discussed above, Alaska R.Civ.P. 37 (g) and Ariz. R.Civ.P. 26(f) forbid "unreasonable, groundless, abusive or obstructionist conduct during the course of discovery."
Ill. S.Ct.R. 213(b) requires attorneys to limit interrogatories "to avoid the imposition of any unnecessary burden or expense on the answering party." Ill. S.Ct.R. 206(d) limits the duration of a discovery deposition to three hours and Ill. S.Ct.R. 206(e) allows a party to seek termination of a deposition conducted in an unreasonable manner. Ill. S.Ct.R. 219 allows sanctioning of parties that abuse discovery procedures by causing unnecessary expenses and delay.
Should the North Dakota rules include additional language that explicitly requires attorneys to avoid unnecessary expenses and delay in discovery in accordance with Guideline 7?
If the Committee decides that accepting Guideline 7 would be appropriate, it may also wish to discuss whether Guideline 7 should be incorporated by "positive" means (i.e., simply inserting language like that found in Guideline 7 into the discovery rules at an appropriate spot) or by "negative" means (inserting additional prohibitions against such behavior into the rules).
When a party fails to comply with its disclosure obligations, the court has a duty to impose sanctions when appropriate.
In determining appropriate sanctions, the court should consider all the circumstances including any resulting expense, whether the failure to disclose was inadvertent or intentional, or constituted unfair surprise. Such sanctions could include imposition of costs, special instructions to the jury regarding the failure to disclose, excluding evidence, or precluding a party from contesting a designated issue.
This Guideline may seem duplicative of Guideline 6. The important difference is that this Guideline focuses on the information actually disclosed as opposed to party behavior during the process of discovery. A party may appear to be cooperating in discovery and meeting deadlines, etc., while still failing to meet its obligations to disclose discoverable information.
North Dakota has no initial disclosure requirements if North Dakota chose to adopt such requirements, amendment of our sanctioning rules would be required to ensure that failure to fulfill initial disclosure obligations would merit sanctions. N.D.R.Civ.P. Rule 26(g) and 37 gives North Dakota courts authority to sanction parties for general failure to comply with disclosure requirements.
Fed. R.Civ.P. 26(g) requires attorneys to certify that information disclosed in discovery is "complete and correct" and allows the court to sanction those who make false certifications. Fed. R.Civ.P. 37(a) allows the court to sanction parties who fail to make disclosures or who make evasive or incomplete disclosures.
Alaska R.Civ.P. 37 (a) gives the court powers similar to those given by Fed.R.Civ.P. 37(a). Alaska R.Civ.P. 37 (c) gives the court further power to sanction parties who fail to make required discovery disclosures.
Ariz. R.Civ.P. 37(c) and (d) give the court power to sanction parties who fail to disclose information, who disclose false or misleading information, or who make untimely disclosures.
Illinois does not seem to have set out specific sanctions available for use against parties who fail to comply with disclosure obligations. Ill. S.Ct.R. 219(c), however, allows sanctions to be imposed for any violation of discovery rules or discovery orders.
Should North Dakota, in accordance with Guideline 8, impose additional rules to sanction parties who fail to meet disclosure obligations?
If the Committee decides that accepting Guideline 8 would be appropriate, it may also wish to discuss how to implement Guideline 8's principles, given that North Dakota already has Rule 37.
The court should encourage counsel at all times to use alternative dispute resolution mechanisms to resolve all substantive issues in civil litigation.
This guideline recognizes that resolution of the underlying dispute is always the court's prime objective from the inception of the case.
North Dakota seems to be ahead of the game in terms of encouraging alternative dispute resolution. See N.D.R.Ct. 8.8.
Fed.R.Civ.P. 16(c)(9) puts discussion of special procedures for resolving the dispute on the agenda at pretrial conferences and Fed.R.Civ.P. 26(f) requires parties to discuss this matter at their own discovery conferences. Alaska R.Civ.P. 16 and 26 contain similar requirements as does Ill. S.Ct.R. 218 (a)(7).
Unlike these jurisdictions, Arizona does not mandate pretrial conferences. However, Ariz. R.Civ.P. 16 recognizes that alternative dispute resolution is a prime topic for discussion at a pretrial conference and Ariz. R.Civ.P. 16 (g) authorizes the court, on its own initiative, to direct the parties to engage in alternative dispute resolution.
Is it necessary for North Dakota to adopt any additional rules to conform to Guideline 9?