TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: August 18, 2011
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 meeting and recommended that it be adopted as a rule of court.
In its current form, Rule 5.1 is a freestanding rule that would apply in civil, criminal and juvenile actions. Of the existing subpoena rules, only N.D.R.Civ.P. 45 references foreign subpoenas - N.D.R.Crim.P. 17 and N.D.R.Juv.P. 13 do not provide a mechanism for subpoenas in out-of-state criminal and juvenile actions to be enforced in North Dakota. Copies of these rules are attached for the Committee's review. The Committee may wish to discuss whether the provisions of the uniform act should apply in criminal and juvenile actions or only in civil actions.
Staff researched how the uniform act has been implemented in the states that have enacted it. In California, Idaho, Indiana, Kansas, Mississippi, New Mexico, and South Carolina, the uniform rule has been integrated into the civil procedure rules. In Colorado, Delaware, Kentucky, Maryland, Tennessee, and Utah it is part of the general judicial rules.
Idaho made the uniform act a subdivision of its civil rule 45. If the Committee decided that the uniform act should apply only in civil cases, the act could be integrated into N.D.R.Civ.P. 45. The main drawback of this approach is that Rule 45 is quite lengthy already. In the alternative, the uniform act potentially could be included in the civil rules as a separate and new N.D.R.Civ.P. 45.1.
N.D.R.Civ.P. 45 is currently before the Supreme Court as part of the Committee's annual rules petition. The Committee recommended changes to Rule 45 related to tribal court subpoenas. If the Committee decides to recommend adoption of the uniform act as a separate rule, it should consider amending Rule 45 to harmonize it with proposed Rule 5.1. The best approach may be to delete subparagraph (a)(D)(3) from Rule 45. Because Rule 5.1 includes federally recognized Indian tribes under its definition of states, it addresses the issue that the pending change to Rule 45 is intended to address.