TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 12, 2012
RE: Rule 5.1, N.D.R.Ct., Interstate Depositions and Discovery
Judge Gail Hagerty, one of North Dakota's Uniform Law Commissioners, forwarded the new Uniform Interstate Deposition and Discovery Act to the Committee for consideration. The Committee discussed it at the April 2011 meeting and recommended that it be adopted as a new rule of court. After further discussion at the September 2011 meeting, the Committee recommended that cross-references to the proposed new rule be added to N.D.R.Civ.P. 45, N.D.R.Crim.P. 17 and N.D.R.Juv.P. 13.
Mr. Plambeck, who was not present at the April meeting, raised some concerns about the rule at the September meeting that the Committee, by consensus, agreed should be discussed with a representative of the Uniform Laws Commission. Judge Hagerty recommended that Mr. Eric Fish be consulted, and he will appear at the January meeting by teleconference.
Staff sent the questions Mr. Plambeck raised to Mr. Eric Fish and he addressed them in the attached email.
Mr. Plambeck noted that Civil Rule 45(a)(3) already authorizes the clerk of court to issue a subpoena in a case pending outside North Dakota on filing proof of service of a deposition notice in that foreign matter. Under the proposed new rule, however, a subpoena issued "under authority of a court of record" in a foreign jurisdiction is forwarded for service in North Dakota. While the proposed new rule does provide that an application for a protective order or to enforce, quash or modify the subpoena must be submitted to the court in the county in which discovery is to be conducted, Mr. Plambeck questions whether this provision will protect the witness from being found in contempt of the foreign court for any noncompliance with the subpoena originally issued by that foreign court. Foreign courts have no jurisdiction beyond their state boundaries, and yet the proposed rule authorizes service of a subpoena from a foreign jurisdiction in North Dakota.
Mr. Fish responded that the act is not intended to allow for citizens of North Dakota to be found in contempt in a foreign court where action is pending. The state where discovery is occurring has the exclusive jurisdiction to enforce the terms of the deposition or issue protective orders if needed. A local court is empowered to protect the citizen from being found in contempt because they have jurisdiction to modify or issue other orders.
Mr. Plambeck said that authorizing service of a foreign subpoena is different from providing notice that a deposition is to be taken in a case pending outside ND for which a ND clerk of court may issue a subpoena. If there is noncompliance with a subpoena issued by a ND court, the witness will be subject to a contempt proceeding only in ND.
Mr. Fish responded that the subpoena from the foreign court is not being served in North Dakota. Upon receipt of the foreign subpoena in North Dakota, the North Dakota clerk would issue a North Dakota subpoena which is served and enforced under North Dakota law. Since the foreign subpoena is never actually served, there is no jurisdiction for the foreign court to enforce it. The process should be viewed as an administrative shortcut to service in North Dakota under North Dakota rules.
Mr. Plambeck said that it appears that the proposed new rule may also have been intended to address concerns about the unauthorized practice of law since the law and the proposed rule state that a request for the issuance of the subpoena does not involve an appearance in the ND court. Mr. Plambeck said that the existing procedure does not involve the unauthorized practice of law in ND since the deposition is being taken in a matter pending elsewhere AND the appearance is "authorized" by the existing Rule 45 procedure that permits/authorizes depositions to be taken in ND for use in matters pending in other states.
Mr. Fish responded that the uniform rule does not create issues of unlawful practice by the non-North Dakota attorney either upon delivery of the foreign subpoena to the North Dakota clerk, or by appearing to conduct the deposition in North Dakota.
Mr. Plambeck also questions the proposed language referencing a subpoena "issued under the authority of a court of record." He questions whether a foreign court ever has "authority" or jurisdiction to issue a subpoena to a nonresident and whether, if the subpoena is signed by an attorney under ND's rules, that subpoena is "issued under authority of a court of record."
Mr. Fish responded that whoever is authorized to sign a subpoena in the foreign jurisdiction (judge, clerk, attorney, etc) will continue to be so authorized "under the authority of a court of record" to do so under the uniform act. The language used was intended to rule out the use of the uniform act in non court of record situations, such as arbitration. Perhaps this could be clarified with reference to the rules governing such procedures.
The proposed new N.D.R.Ct. 5.1 and proposed amendments to N.D.R.Civ.P. 45, N.D.R.Crim.P. 17 and N.D.R.Juv.P. 13 are attached.