TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 45, N.D.R.Civ.P., Subpoena
The U.S. Supreme Court has approved amendments to N.D.R.Civ.P. 45 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 45 based on the federal amendments is attached. The amendments to subdivision (b) have already been approved by the Committee and are pending before the Supreme Court.
The following changes to Rule 45 are proposed:
--Throughout the rule, references are included to copying, testing and sampling electronically stored information from all possible storage media.
--Subparagraph (a)(1)(B) is amended to include language allowing the requestor to specify the form in which electronically stored information is to be produced.
--Paragraph (d)(1) is amended to include instructions on how electronically stored information should be produced if the form is not specified. The new language also allows objections to production to be made based on undue burden or cost.
--Subparagraph (d)(2)(B) is amended to include instructions on how to assert claims of protection or privilege when the allegedly protected material has already been produced in electronic form.
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.