TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 26, N.D.R.Civ.P., General Provisions Governing Discovery
The U.S. Supreme Court has approved amendments to N.D.R.Civ.P. 26 that will take effect December 1 unless Congress intervenes. The amendments are part of a revision to the civil rules designed to address discovery of electronic materials.
A proposal for amendments to Rule 26 based on the federal amendments is attached.
Extensive materials explaining the rationale behind the electronic discovery amendments are attached. In addition to the amendments proposed, changes were made to Fed.R.Civ.P. 16 and 26 involving required initial disclosure of electronic discovery material. These changes are not included in the Rule 26 proposal because North Dakota does not require initial disclosures.
The following changes to Rule 26 are proposed:
--A new paragraph (b)(2) titled "Limitations" is added. Completely new language allowing a party to resist discovery of electronic information based on "undue burden or cost" is added as new subparagraph (b)(2)(B).
--A new paragraph (b)(6) is added dealing with claims of privilege and protection. Subparagraph (b)(6)(A) deals with information that is withheld based on a claim of privilege or protection. Subparagraph (b)(6)(B) deals with information that is produced that the producing party later claims is subject to privilege or protection.
Amendments are also proposed for the explanatory note. The proposed amendments explain the changes to the rule and also update the content of the explanatory note.