TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 8, 2008
RE: Rule 8.2, N.D.R.Ct., Interim Orders in Domestic Relations Cases
Attorney Tom Slorby has submitted a letter to the Committee dated May 29, 2008. A copy of the letter is attached. In the letter, Mr. Slorby asks that affidavit practice in domestic relations cases under Rule 8.2 be changed.
Mr. Slorby writes that affidavits submitted under Rule 8.2 routinely do not comply with basic requirements for affidavits. Mr. Slorby writes that courts do not sanction parties who submit improper affidavits. Mr. Slorby writes that loose standards for affidavits create delays and additional costs in domestic relations cases.
Mr. Slorby suggests that affidavit practice under Rule 8.2 be eliminated. Staff has prepared proposed amendments to Rule 8.2 that would require witness testimony instead of affidavits under Rule 8.2. This proposal is attached and labeled Alternative 1.
In the alternative, Mr. Slorby requests that affidavits under Rule 8.2 be held to the same standards as affidavits under N.D.R.Civ.P. 56. Staff has prepared proposed amendments to Rule 8.2 that integrate the Rule 56 affidavit standards and Rule 56's sanctions for affidavits submitted in bad faith. This proposal is attached and labeled Alternative 2.