TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 9, 2009
RE: Rule 31, N.D.R.Civ.P., Depositions of Witnesses Upon Written Questions
Staff has prepared amendments to Rule 31 based on the federal form and style amendments. The amendments are intended make the rule more easily understood and to make style and terminology consistent throughout the rules. The amendments also aim to modernize the rule, removing references to obsolete authority and practices.
Rule 31 differs from the federal rule and the federal rule contains provisions not found in the North Dakota version. Therefore, the Committee should examine the proposed amendments to Rule 31 closely to see whether they are desirable and consistent with North Dakota practice.
Here are some things to look at in the proposal:
Rule 31(a)(2) lists instances when leave must be obtained to conduct a deposition by written questions. Under N.D. law, obtaining leave is only necessary when the deponent is in prison. Under the federal rule, there are additional circumstances when leave must be obtained and the Committee may wish to consider whether to add any of these to the North Dakota rule.
Rule 31(a)(4) is a rewrite of existing material. The Committee may wish to discuss whether any other sort of business association, such as a limited liability company, should be listed or whether the proposed language is adequate to cover potential business deponents.
Rule 31(b)(3) just instructs the officer to "send" the deposition rather than specifically listing the methods by which the deposition may be sent as in the existing rule. The Committee may wish to consider whether either approach is superior or whether something in the middle would be more appropriate.
The text of Rule 31(c) was deleted in the mid-1980s. It is not clear from the minutes why it was deleted. The text Fed.R.Civ.P. 31(c) is included in the proposal so that the Committee can discuss whether it should be returned to the rule.
The proposed amendments to Rule 31 are attached along with a copy of the amendments
to the federal rule.