TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 9, 2009
RE: Rule 37, N.D.R.Civ.P., Failure to Make or Cooperate in Discovery; Sanctions
Staff has prepared amendments to Rule 37 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.
Here are some things the Committee may wish to look at:
Under Rule 37(a)(2), the proposed language could constitute a change in the venue rules for filing a discovery motion (or it may simply be a clarification).
Under Rule 37(a)(5)(A)(i), the proposed language adds an additional ground that would allow a party to avoid paying discovery sanctions, failure of a party to attempt to work out the dispute before going to court.
Under Rule 37(d) the proposal would reorganize the subdivision and add a requirement for the movant to certify that an attempt to work out the dispute had been made.
The proposed amendments to Rule 37 are attached along with a copy of the amendments
to the federal rule.