TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 37, N.D.R.Civ.P., Failure to Make or Cooperate in Discovery; Sanctions
The U.S. Supreme Court has approved amendments to N.D.R.Civ.P. 37 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 37 based on the federal amendments is attached.
The following changes to Rule 37 are proposed:
--Language barring award of expenses against the state, previously in subdivision (f), is moved to subdivision (e). This proposed move will allow the new language in subdivision (f) to parallel the new language in federal subdivision (f). Subdivision (e) in both the federal and state rules has been abrogated for more than 20 years.
--New language in subdivision (f) limits sanctions that can be imposed for failing to provide electronically stored information that was lost due to routine, good-faith operation of an electronic information system
Amendments are also proposed for the Rule 37 explanatory note. The proposed amendments explain the changes to the rule and also update the content of the explanatory note.