MINUTES OF MEETING
Joint Procedure Committee
April 25-26, 2013
TABLE OF CONTENTS
Rule 41, N.D. Sup. Ct. Admin. R., Access to Court Records 3
Rule 3.5, N.D.R.Ct., Electronic Filing in the District Courts; Rule 3.1, N.D.R.Ct., Pleadings;Rule 5, N.D.R.Civ.P., Service and Filing of Pleadings and Other Documents; Rule 11,N.D.R.Civ.P., Signing of Pleadings, Motions and Other Papers; Representation to Court;Sanctions; Rule 58, N.D.R.Civ.P., Entry and Notice of Entry of Judgment 3
Rule 43, N.D.R.Civ.P., Evidence; Rule 28, N.D.R.Crim.P., Interpreters 16
Rule 803, N.D.R.Ev., Hearsay Exceptions; Availability of Declarant Immaterial; Rule 902,N.D.R.Ev., Self Authentication 18
Rule 68, N.D.R.Civ.P., Offer of Settlement or Confession of Judgment; Tender 21
Rule 8.10, N.D.R.Ct., Uniform Collaborative Law Rule 23
Rule 6, N.D.R.Civ.P., Computing and Extending Time; Time for Motion Papers; Rule 26,N.D.R.App.P., Computing and Extending Time; Rule 45, N.D.R.Crim.P., Computing andExtending Time 26
Rule 101, N.D.R.Ev., Scope; Definitions 27
Rule 501, N.D.R.Ev., Privileges Recognized Only as Provided 27
Rule 502, N.D.R.Ev., Lawyer-Client Privilege 28
Rule 503, N.D.R.Ev., Physician and Psychotherapist-Patient Privilege 29
Rule 504, N.D.R.Ev., Husband-Wife Privilege 32
Rule 505, N.D.R.Ev., Religious Privilege 33
Rule 506, N.D.R.Ev., Political Vote 33
Rule 507, N.D.R.Ev., Trade Secrets 33
Rule 508, N.D.R.Ev., Secrets of State and Other Official Information; GovernmentalPrivileges 34
Rule 509, N.D.R.Ev., Identity of Informer 34
Rule 510, N.D.R.Ev., Waiver of Privilege 34
Rule 511, N.D.R.Ev., Privileged Matter Disclosed under Compulsion or WithoutOpportunity to Claim Privilege; Rule 512, N.D.R.Ev., Comment Upon or Inference FromClaim of Privilege; Instruction 35
Rule 1101, N.D.R.Ev., Applicability of Rules 35
Completed Form and Style Amendments to the North Dakota Rules of Evidence 36
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on April 25, 2013, by the Chair, Justice Mary Muehlen Maring.
Justice Mary Muehlen Maring, Chair
Honorable Laurie Fontaine
Honorable John Greenwood (Thursday only)
Honorable William A. Herauf (Thursday only)
Honorable Debbie Kleven
Honorable Steven L. Marquart
Honorable Steven McCullough
Honorable William McLees
Honorable Thomas E. Merrick
Honorable David E. Reich
Mr. Bradley Beehler
Mr. Larry L. Boschee (Friday only)
Mr. Daniel Dunn
Mr. Robert Hoy
Prof. Margaret Moore Jackson (Thursday only)
Mr. Richard H. McGee
Mr. Lonnie Olson (Thursday only)
Mr. Bruce D. Quick
Mr. Kent Reierson (Friday only)
Ms. Joanne Hager Ottmar
The Chair welcomed guests Kathy Ouren, Cass County Clerk of Court, and Chris Iverson, Unit 2 Assistant Court Administrator.
APPROVAL OF MINUTES
Judge Herauf MOVED to approve the minutes. Mr. Quick seconded. A member pointed out a code reference error on page 13, which was corrected with unanimous consent of the committee. The motion to approve the minutes CARRIED.
RULE 41, N.D. Sup. Ct. Admin. R., ACCESS TO COURT RECORDS (PAGES 31-33 OFTHE AGENDA MATERIAL)
Staff explained that the Court Technology Committee had made changes to how a person's criminal record was displayed on the District Court search website in response to suggestions by this committee.
The Chair drew the committee's attention to Justice Dale Sandstrom's letter explaining how the Court Technology had responded to the committee's concerns.
A member said that the letter indicated that, in the future, additional changes might be possible to provide fuller information about how criminal charges are disposed of in a given case. The member said that the changes in the display were an improvement because they gave some information about case disposition. The member said that the information provided was still not very detailed or extensive and additional refinements would be welcome.
RULE 3.5, N.D.R.Ct., ELECTRONIC FILING IN THE DISTRICT COURTS; RULE 3.1,N.D.R.Ct., PLEADINGS; RULE 5, N.D.R.Civ.P., SERVICE AND FILING OF PLEADINGS AND OTHER DOCUMENTS; RULE 11, N.D.R.Civ.P., SIGNING OF PLEADINGS, MOTIONS AND OTHER PAPERS; REPRESENTATION TO COURT; SANCTIONS; RULE 58, N.D.R.Civ.P., ENTRY AND NOTICE OF ENTRY OF JUDGMENT (PAGES 34-59 OF THE AGENDA MATERIAL)
Staff reported that the Supreme Court had made additional amendments to Rule 3.5 and that it was accepting comments on the amendments. Staff presented the amendments to the committee for discussion about whether it had additional proposed amendments or comments to forward to the Court.
The Chair asked the committee to consider the question of whether the e-filing requirement should apply to non-parties. A member asked what issues non-parties were having with e-filing. A member replied that e-filing was a burden not just to non-parties but to parties and required increased time to be spent opening, printing, signing, and scanning documents that previously would have been completed in paper in much less time.
A member asked what the intent was in imposing the mandatory e-filing requirement. The member said that when the committee previously discussed the rule, it never considered whether it would apply to persons other than attorneys and parties. The member said there seemed to be a general lack of understanding of whom the rule was intended to apply to and how it was intended to work. The member said that e-filing was probably a good idea, but that the rule was imposed on too fast a timetable.
A member said that it did not appear that the Court Technology Committee or the Court itself contemplated the effect the rule would have on non-parties. A member said that attorneys in general appear to have accepted the rule, but they question why the people they work withsuch as alcohol and drug evaluators, who are often sole practitioners with limited office staffare required to e-file documents.
A member said that the rule seems to have lost sight of the fact that the courts need to serve the public. The member said the courts work with guardians, doctors, and public administrators who need to file reports and who have been having trouble with e-filing. The member said that some clerks have not been working well with judges on cooperating to e-file documents.
A member said that judges did not have to e-file. A member replied that the state court administrator has instructed courts to e-file and the rule states that all documents need to be e-filed. A member said that court officials and judges could be trained on the system and that some are using it. The member said that judicial staffs just need to learn what codes to pick and how to use the systemit does not take long.
A member said different judicial districts have been taking different approaches to electronic filing by judicial staff. The member said the key question is "who does the work?" Who actually electronically files the document, the judicial staff or the court staff? The member said for the time being the clerk staff needs to assist the judicial staff through the transition to complete electronic filing. The member said that no outreach was done prior to the rule taking effect to train judicial staff on using electronic filing so it makes sense for the clerks to assist during the transition period.
A member said the transition to electronic filing has been rushed, but because the committee can only advise about rules, it needs to do the best it can to provide constructive advice about how to best modify the rule to deal with the issues that have surfaced since e-filing became mandatory.
A member said that the rushed imposition of the e-filing requirement, and the requirement that non-parties e-file, has negatively affected the public trust and confidence
in the courts. The member said that more input from the public should have been sought before e-filing became mandatory. The member said this would have made things easier for people. The member expressed concern that some providers would decide not to continue their relationship with the courts because of frustration with e-filing. The member said that the e-filing requirement should specifically apply only to parties and their attorneys and that there should be a gradual transition to requiring non-parties and judicial staff to e-file.
Guest Kathy Ouren said that there has been push back against e-filing from the time it was introduced as a pilot project. She said that e-filing presents a learning curve and a new process that needs to be understood. She observed that early in the e-filing days, the state hospital had requested to be exempt because they did not have the staff or equipment to perform the tasks. She said the court worked with the hospital and now they e-file without problems. She said this is another transition and that things will be rocky for awhile, but that the problems will be overcome with time and experience. She said that most non-parties in Cass County are e-filing now, even though they might prefer not to. She said that e-filing is easier for non-parties because they do not need to use all the different codes that attorneys do. She said she would be concerned if e-filing requirements were changed now because some persons were not happy being required to e-file.
A member asked whether any non-parties in Cass County had refused to e-file. Ms. Ouren said no, although some non-parties who work with the juvenile court may be submitting files to the court officers and having the court officers do the filing. Guest Chris Iverson said that the juvenile court and its staff had taken proactive steps to use e-filing because it is physically separate from the district court and it was easier for the juvenile court to e-file.
Ms. Iverson said court administration had not pushed the judges and judicial staff to e-file but were trying to work with them. She said, however, that some court staff seem to misunderstand what equipment is needed for e-filing. She said printing and re-scanning is not needed and if a person has an electronic copy of a document it can be e-filed as easily as attaching it to an e-mail.
Ms. Iverson and Ms. Ouren said that their staff have not been requiring documents submitted or signed off during court to be e-filed.
A member said that judges do face hurdles to e-filing that have not been addressed. The member said that there is not a law clerk or an administrative assistant for every judge. The member said that the time judges spend dealing with the clerical and technical aspects of e-filing was taking time away from the other work that judges need to do.
A member responded that attorneys in private practice and prosecutors face the similar challenges as judges in fulfilling e-filing requirements and questioned why judges have not been willing to fully adopt e-filing. The member said that private attorneys often have to do the e-filing work on judgments and orders that judges sign and send out but do not file themselves. A member responded that when this happens, it is the clerk and not the judicial staff that is sending out the order for the attorney to file.
A member said that a particular problem is that attorneys and parties do not get the same notice when a judge or clerk e-files a document as they would when another attorney does the e-filing. The member said that when an attorney e-files a document, electronic notice is sent out to everyone associated with the case. The member said when a clerk files a document, even though the document is filed electronically, this notice is not sent.
A member said that some judges send courtesy copies of orders to lawyers themselves. A member said that when judges use e-file and serve instead of using the clerk to file, notice of filing is sent out automatically. A member wondered why, when an order is filed by the clerk, notice is not sent out automatically to all parties. Ms. Ouren said that clerk offices send out reports of all judgments and orders that are filed to attorneys who request the report. A member said these reports are divided into categories, such as family law. The member said that attorney staff is then required to go through the reports to determine whether any orders have been issued in cases the attorneys are involved in.
A member said that there was a feature in Odyssey that attorneys could use to request notice of an order being entered by the clerk, but that this feature is not widely used. Ms. Ouren explained that if a document was e-filed by a party or attorney, a notice would be sent out, but that automatic notice is not sent out when a document is scanned in by a clerk. She said that the Odyssey case management system is used when a document is scanned into the electronic case file and this system does not send out automatic notice.
A member said that there will be a substantial improvement for judges once judges can sign documents submitted by parties or attorneys or police electronically. The member said this capability has been promised for Odyssey. The member said judges must now physically sign many documents daily and these documents must be scanned into Odyssey. Once this feature becomes part of the system, judges will be able to e-file more documents and notice will be sent.
A member said that attorneys think that if a judge signs something and it is input into the system, the attorney will get notice. Several judge members said they know this is not the case, which is why they personally send courtesy notice of orders to attorneys and parties. A member said not getting notice of filing creates problems for attorneys and it should be the
part of the system that when something is placed in the electronic file, notice is sent to the parties and attorneys.
Ms. Ouren said that upcoming versions of Odyssey may have the capability to allow clerks to automatically send notice when a document is scanned into the system, but that notice would have to be sent manually under the current system. She said that notice of filing of documents that need to be scanned into the system, such as arrest warrants, is now sent out in reports.
Judge Kleven MOVED to send a comment to the Court suggesting that when a clerk electronically files a document signed by a judge, the clerk be required to send notice of the filing to the attorneys associated with the case. Mr. Hoy seconded.
A member said that the discussion of this issue showed that it would be cumbersome for the clerks to send out such notice. A member replied that the discussion also showed that it is cumbersome for lawyers and judges not to have notice automatically sent when an order is entered. A member said the notice requirement suggestion should only apply when notice of filing is not otherwise sent, such as when a judge e-files a document themselves.
A member commented that one cumbersome aspect of e-filing for attorneys is the need to file separately documents that were formerly sent together, such as the notice of motion, motion, brief, and certificate of service. The member said the burden of separating these documents out and e-filing them was falling mostly on attorney staffs.
A member said that the comment to the Court should include a suggestion that any notice of filing the clerks provide be sent through the Odyssey system. The member said that now that e-filing through Odyssey is mandatory, lawyers are becoming accustomed to looking for Odyssey e-mails for notice of what is going on in their cases. The member said the clerks should send notice through Odyssey, rather than through a different e-mail system or from a different address, so that attorneys will be able to appropriately monitor their cases.
A member said the clerks are now sending out reports of orders being entered and attorneys may receive these reports if they request them. The member asked whether the motion should be adjusted to make it clear that notice through a report is not adequate notice under the motion.
A member said there is a function in Odyssey that can be activated to send notice to attorneys of what is happening in their cases. The member said this feature has been mentioned at previous committee meetings and at various presentations to the bar about the Odyssey system.
A member asked why the same technology that is used to compile the comprehensive reports of filed documents, including scanned in documents, could not be used to send out case-specific and individualized notices of filed documents.
A member asked what kind of notice the clerks sent out when they filed an order in the pre-electronic days. The member said that requiring a clerk to send notice of filing seemed to be giving the clerk a new duty. A member replied that practice was different in different parts of the state, with some clerks sending out notice when an order was filed and others requiring attorneys to check with the office to find out if anything had been filed. A member said that involvement by judges also varied, with judges usually sending out notices of decisions but not of warrants issued.
A member said a similar situation continues to exist, with judges, judicial staff, and clerks sending out notices of filing in different ways.
The motion CARRIED with 2 no votes.
The discussion turned to whether non-parties should be required to e-file. A member said that there is less reason to be concerned about non-parties having to use e-filing when the non-party is appointed and paid by the court. A member replied that in rural counties, there are very few people able and willing to serve as guardians or in other court-appointed roles. The member said that courts often have to beg for people to assume these responsibilities. A member said mental health providers and alcohol and drug evaluators are very hard to find in rural areas. The member said requiring these persons to e-file in addition to other responsibilities just makes it more difficult to get them to assist the courts.
A member pointed out that Rule 3.5's language allowing exceptions to the e-filing requirement in "exceptional circumstances" applied only to attorneys. The member suggested that this language could be revised so that exceptions could be made when a non-party was not able to e-file. The member said that non-parties should be encouraged to e-file, but that exceptions should be made when e-filing is not possible.
Mr. Quick MOVED to amend language at page 36, lines 11-12, and page 38, line 52, to replace "an attorney" with "anyone." Judge McLees seconded.
A member asked whether a non-party would be required to make a motion for an exception on a case-by-case basis or whether they could obtain a general exception. A member replied that the language of the rule seemed to require case-by-case motions. A member said this might be problematic for providers. A member suggested that the "particular case" language could be removed to allow persons to obtain standing exceptions.
Judge McCullough MOVED to amend the motion to remove "in a particular case" on page 36, lines 11-12, and page 38, line 52. Judge Kleven seconded.
A member said it was not necessary to remove the "particular case" language. The member said that, in practice, if a non-party had reason to seek exemption from e-filing, they would likely be allowed to make an informal request to the court. The member said that it would not be a burden to require such requests to be made on a case-by-case basis. The member said it is important for the rule to show a preference for e-filing and indicate that exceptions are not standard procedure.
A member said it is unclear who would have the authority to grant anyone a blanket exemption from e-filing. A member said the case-by-case language is in the rule because the Court is concerned that attorneys will seek blanket exemptions, which is not appropriate. A member said if the committee's goal is to make things easier for non-parties seeking exemptions, it should exempt non-parties from e-filing along with self-represented litigants and prisoners.
A member said attorneys should be required to file electronically unless they can show exceptional circumstances on a case-by-case basis, but non-parties should be treated less strictly. A member said that exempting non-parties from e-filing would change the default situation, which is to encourage everyone to e-file and to make exceptions the exception. A member said it would be better to urge non-parties to e-file than to require them to e-file.
The motion to amend the motion FAILED.
A member said it would be preferable to just exempt non-parties from e-filing, rather than amending the rule to allow them to seek case-by-case exemptions. The Chair said the Court had heard about the problems that non-parties and others were having complying with e-filing requirements and the Court had instructed clerks and administrators to give court users substantial leeway in complying with e-filing requirements during the transition period.
A member said medical providers were a particular problem and warned that the courts should be wary of alienating these people by strictly enforcing e-filing requirements. The member said that requiring medical providers to seek exemptions on a case-by-case basis would create friction.
Judge Reich MOVED a substitute motion to amend page 36, line 7 and page 38, line 50, to insert "non-parties" before "self-represented." Judge Herauf seconded.
A member said the substitute motion should not be adopted because it is unlikely that the Court would accept a proposal to exempt non-parties from e-filing. The member also said that requiring non-parties to seek exemptions on a case-by-case basis is not burdensome because a non-party with continuing business before the court who has a legitimate reason to seek exemption from e-filing will be able to generate a form and use the form whenever they need an exemption.
A member said that adding another form to the process would not help relieve the problem faced by requiring non-parties to e-file. The member said requiring non-parties to e-file is burdensome and they should be exempt.
A member said that the problem with requiring e-filing by non-parties is sometimes greater in rural counties. The member said that the right person to do a task like serving as a guardian ad litem or performing a custody review in a rural county might not be a person with the access to computers and the internet required to e-file. The member said that allowing a case-by-case exemption properly addresses this kind of situation.
The substitute motion FAILED.
A member said that the issue of obtaining multiple exemptions for non-parties could be solved by developing a form request and that major medical and mental health providers would have the resources to either use a form or to comply with the e-filing requirement. A member said that, in practice, the clerks and the court would be able to work with non-parties without large resources to help them file for exemptions.
A member asked whether the case-by-case exemption possibility would adequately serve non-parties who only rarely have contact with the courts, such as guardians who are required to file annual reports. The member said these people are unlikely to have the capability to e-file or adequately apply for an annual exemption.
The motion CARRIED.
Staff said that the part-time state's attorneys had submitted comments to the Court regarding Rule 3.5's provision requiring submission of service e-mail addresses to the Board of Law Examiners. Staff said that the part-time state's attorneys desired some provision to allow the listing of a separate e-mail address for their official and private practice service addresses.
A member said that part-time state's attorneys are trying to keep their private practices separate from their government practices. The member said that in the larger counties, the
state's attorneys need to designate an office address so that it is clear where items are to be served. Staff explained that the technical work has been done to allow attorneys to list two separate e-mail addresses on their online attorney directory listings and to allow listing of the state's attorney office e-mail service address on the county state's attorney page.
A member said that e-filing is a cumbersome process for prosecutors because of the large number of documents involved in criminal cases, especially when there are multiple charges. The member said that office staff has been burdened by the increased workload.
Judge McCullough MOVED to amend Rule 3.5 at page 38, line 59, to delete "an" and replace with "at least one." Judge McLees seconded.
A member said the proposed change would make it clear that attorneys can submit more than one e-mail address to the Board of Law Examiners and have those addresses listed on the Court's website. The member said this would help the part- time state's attorneys by allowing them to submit multiple addresses to the Board.
The motion CARRIED.
Judge McCullough MOVED to amend Rule 3.5 at page 38, line 60, to provide that designated e-mail addresses will be posted on the Court website. Judge McLees seconded. Motion CARRIED.
The Chair explained that e-mail addresses for service would be provided to the Board of Law Examiners and displayed in the lawyer directory on the Supreme Court website. The Chair explained that the online lawyer directory had the capability to list multiple e-mail addresses on a given lawyer page.
A member said that one issue that may need to be addressed in the rules in the future is what happens when an item is e-served on an attorney at an e-mail address other than the one the attorney designates as a service address. If a lawyer has multiple addresses listed on the website, and actually receives an e-served item at the "wrong" address, the lawyer would have actual notice of the service and arguably the service would be valid. The member said the rules may have to be modified if the intent is to require service at a specific e-service address among several listed.
A member said the paragraph numbering requirement creates some complications with different types of documents. The member said a court had tried paragraph numbering on jury instructions in a recent case. The member said the paragraph numbering looked horrible on jury instructions. The member said that juries have a hard enough time understanding jury
instructions and adding paragraph numbering could make the instructions even more confusing. The member said putting in paragraph numbers is a burden on staff if the staff must assemble the jury instructions from documents submitted by the partiesit is cumbersome to insert paragraph numbers in a document created by cutting and pasting from other documents. The member suggested that jury instructions be exempt from the paragraph numbering requirement.
The Chair said the Court started paragraph numbering when it began publishing opinions electronically. Staff said the paragraph numbering requirement was extended to appellate briefs when the court started accepting electronic filings. The reason paragraph numbering was needed was that pagination gets shifted or lost when a word processing document is submitted electronically. Having paragraph numbering allows parties and courts to find material in electronically submitted documents in the absence of reliable page numbering. Staff said the Court has found that being able to refer to a specific point in a document, rather than just the page number, is useful and convenient and this is another reason why the electronic filing rule contains a paragraph numbering requirement.
A member said that jury instructions often need to be changed at the last minute. The member said changing paragraph numbers at the last minute complicates this process. A member said courts who use the one instruction per page method of putting together jury instructions would have less trouble with paragraph numbers. A member said jury instructions are often put together using line numbers so having paragraph numbers is not needed to identify specific content within the instructions.
A member asked why the rule does not require parties to submit .pdf files. The member said paragraph numbering would not be needed in .pdf files because the page numbers would be retained. Staff said that Tyler Technology had requested that submissions to Odyssey® be limited to .pdf files and that this would be an issue when the contract is renegotiated.
A member said that some court users would likely have problems with converting documents to .pdf files for e-filing. A member said that satisfying the technological requirements of e-filing is placing a great burden on court users. A member responded that mandatory e-filing will reduce the burden that the clerks have been managing since the advent of Odyssey®. The member said that the clerk staffing survey last year showed that North Dakota was 26 clerks short, but the legislature has only added eight new clerk positions. The member said that there are not enough clerks to continue filing and scanning paper documents into Odyssey® so mandatory e-filing is necessary.
Ms. Ouren said that clerks are still required to do a significant amount of work on e-
filed documents, including quality control on every page of e-filed documents. A member said that the clerks are having to deal with people new to e-filing who are not experienced with scanning documents and who are submitting sometimes unreadable files. The member said this should improve as filers gain experience with e-filing.
A member said that because attorneys are required to e-file, judicial staff have to print out documents like the proposed findings of fact, conclusions of law, and order for judgment for the judge's signature. The member said this is a big increase in work from the previous practice when attorneys would submit paper documents for a judge's signature and no printing or scanning by staff was required. The member said this situation may improve when electronic signatures are possible in the next version of Odyssey®.
Judge Fontaine MOVED to send a comment to the Supreme Court suggesting that jury instructions be an exception to the paragraph numbering requirement. Judge McLees seconded. Motion CARRIED.
A member said that paragraph numbering makes e-filing even more of a burden. The member said that if a change is made in the future to require filing of .pdf documents, the paragraph numbering requirement should be eliminated because pagination is retained in .pdf documents.
Prof. Moore Jackson MOVED to send a comment to the Supreme Court suggesting that, if e-filing of .pdf documents is required by a future rule, the paragraph numbering requirement should be eliminated. Mr. Beehler seconded.
A member said that if a .pdf requirement is going to be imposed in the near future, the paragraph numbering requirement should be suspended immediately. The member said there is no point in retaining a requirement that is causing stress for many court users when this requirement will soon no longer be necessary. The member said that the Court should take into account whether the system is user friendly.
Staff explained that the current rule provision allowing the filing of different document types was designed to make the system user friendly. Ms. Ouren commented that many users are currently filing .pdfs but that other document types allowed by the rule also continue to be filed.
The committee moved on to N.D.R.Ct. 3.1. Staff explained that the Court had amended this rule to include an e-mail address requirement similar to the requirement now
contained in N.D.R.Civ.P. 11.
A member pointed out the committee's previous amendment to Rule 3.1 allowing a party to file only one copy of the demand for change of judge. The demand for change of judge statute required filing in triplicate; the member pointed out that there was at least one other statute, N.D.C.C. § 14-12.2-36 on registering child support orders, that required filing of multiple copies. The member said that the language of Rule 3.1 should be made broader to supersede any statute that requires the filing of multiple copies.
The Chair suggested that the specific reference to the demand for change of judge could be eliminated.
Judge McCullough MOVED to amend language at page 41, lines 20-21, to read: "A party
need only file the original
demand for change of judge." Judge Herauf
A member said that, with e-filing, the paper original of any document would stay in the attorney's file. A member replied that, under the rule, whatever is first filed is by definition, the original.
A member suggested that language be added to the explanatory note indicating that, to the extent that a statute indicates that a party must file multiple copies of a document, this rule would supersede the statutory requirement. A member said it was important to also retain the language superseding the change of judge statute. A member suggested that staff should research whether there were other specific statutes that the proposed new language would supersede so that references to these statutes could be added to the note.
By unanimous consent, staff was instructed to perform the requested statutory research and bring Rule 3.1 back before the committee at the next meeting.
A member said that the language in the rule requiring parties to submit proof of service when a document was filed was creating some problems for the clerks. The member said some actions need to be filed before service. For example, in a forcible detainer action, a hearing must be held during a brief window of time after service. A hearing, however, cannot be scheduled unless an action is filed. Therefore, a party needs to file the complaint before service and obtain a hearing date so that the complaint and the notice of hearing can be served on the other party.
Ms. Ouren said that the way the calendering system works, an action must be filed
before anything related to the action, such as a hearing, can be placed on the calendar. She said the clerks were encountering quite a few cases where the requirement for having a service document accompany the document to be filed had created problems. She said, for example, attorneys who seek to file stipulations argue that a service document should not required because all parties have already signed off. Ms. Ouren said that, prior to e-filing, the requirement that the service document be attached to the document submitted for filing was not enforced.
Staff said that one problem was that, while the rule allowed documents to be filed without a service document when this was legally permitted, the clerks did not want to be making the call on whether such filing was legally permitted in a given case. Staff said that a list of known case categories where filing before service was allowed was being compiled.
A member commented that in some cases where filing should be allowed before service, there is no specific statute or rule that makes this clear. The member said that eviction actions are allowed to be filed before service based on longstanding custom and that a statute and rule-based list might not solve the problem in these cases. The member said an eviction hearing cannot be scheduled unless a case has been entered into the Odyssey® system. The member said that, prior to the Rule 3.1 amendments, the clerks allowed a case to be filed prior to service so that a hearing could be scheduled, but that the clerks would cancel the hearing if service was not timely made afterwards.
A member asked how clerks handled service documents on petitions to revoke probation. The member said that once a person is convicted, their trial attorney is done and there is no one to serve the petition on, other than the defendant. The member said a judge needs to sign the petition before a warrant can be issued for the defendant, but if the petition cannot be filed it cannot go to the judge. The member said this was another situation where filing before service should be allowed.
A member said some clerks were refusing to file transcripts without proof of service. The member said service of a transcript is not required.
By unanimous consent, the committee instructed staff to address the service document issue as part of the proposed amendments to Rule 3.1 for consideration at the next meeting.
The committee turned its attention to N.D.R.Civ.P. 5. Staff explained that a small change was proposed to make the rule consistent with amendments to N.D.R.Ct. 3.5.
Judge McLees MOVED to approve the proposed amendments to N.D.R.Civ.P. 5. Mr. Hoy seconded. Motion CARRIED.
A member suggested adding language to Rule 5 to clarify that when a document is served by electronic means, the service should be made to the attorney's designated e-mail service address.
Prof. Moore Jackson MOVED to insert text at page 46, line 25: "Electronic service on an attorney must be made to the designated e-mail service address posted on the N.D. Supreme Court website." Mr. Quick seconded. Motion CARRIED.
A member asked whether the proposed language would govern service of non-filed documents under Rule 5(b)(3)(F) through Odyssey's® service function. The member said that e-service by agreement under Rule 5(b)(3)(F) was easy to accomplish through Odyssey®. A member said the intent of the proposed amendment was to clarify that any electronic service must be made to the attorney's designated e-mail address.
Ms. Moore Jackson MOVED to have staff draft an explanatory note on the amendment that indicates the intent to have all electronic service made on an attorney directed to the attorney's web-posted designated e-mail address. Mr. Quick seconded. Motion CARRIED.
The committee turned its attention to N.D.R.Civ.P. 11. Staff explained that the proposed amendments to Rule 11 would specify that the attorney's designated e-service address must be included in filed documents.
Mr. Beehler MOVED to adopt the proposed amendments to Rule 11. Judge Herauf seconded. Motion CARRIED.
The committee turned its attention to N.D.R.Civ.P. 58. Staff explained that proposed amendments to Rule 58 were intended to authorize parties to use the Odyssey® file and serve system to serve the Notice of Entry of Judgment and an attached copy of the judgment on other parties.
Prof. Moore Jackson MOVED to adopt the proposed amendments to Rule 58. Mr. Dunn seconded. Motion CARRIED.
Ms. Ouren and Ms. Iverson departed the meeting.
RULE 43, N.D.R.Civ.P., EVIDENCE; RULE 28, N.D.R.Crim.P., INTERPRETERS(PAGES 60-81 OF THE AGENDA MATERIAL)
Staff said that the committee had discussed proposed amendments to Rule 43 and Rule
28 at the January meeting. The amendments were designed to wholly supersede N.D.C.C. §§ 31-01-11 and 31-01-12. During the January discussion, committee members suggested the amendments were not consistent with federal civil rights law and staff was instructed to perform additional research and drafting work. Both the proposals were tabled. Staff reported on the requested research and presented new proposed amendments based on the ABA Standards for Language Access in the Courts.
Judge McCullough MOVED to remove Rule 43 from the table. Judge Reich seconded. Motion CARRIED.
Mr. Quick MOVED to approve the proposed amendments to Rule 43. Prof. Moore Jackson seconded.
The Chair pointed out that the proposed amendments did not address who would pay for the translator services. A member said that judges should not expect the court administrator to pay the bill if it is submitted to them because they have no funds unless the hearing impaired person is indigent. A member commented that the letter from the Department of Justice in the meeting materials was pretty clear about the need to provide interpreter services regardless of whether the person requiring the services was indigent. The member said that the courts were obligated to provide access to everyone.
A member said that all judges have encountered situations where it is clear that a person before the court could not understand the proceedings. The member said the law is clear that in such situations, especially in criminal cases, the court must provide assistance, usually first by appointing an attorney. The member said that the court cannot necessarily tell at the moment when it provides assistance whether the impaired person is indigent.
A member said that in a recent situation where the judge had suggested that the defendant, interpreter and attorney step out of the courtroom to discuss a plea agreement, court administration had refused to pay the interpreter for the time because the services were rendered outside the courtroom. A member said that unless a defendant is indigent, interpreter services are only provided during court proceedings.
A member said the big change under the proposed amendments to Rule 43 was to impose an obligation to provide interpreters in civil cases. The member said, however, that the committee needed to take action because the issue of interpreter access has been brought to the attention of the committee and there is a need to comply with federal civil rights laws. A member replied that if the committee passed a rule requiring interpreters, but there was no money to fund it, this would not be an appropriate step. A member said that funding for interpreters should be in the court system budget.
Prof. Moore Jackson MOVED to change "assign" on page 61, line 14, to "provide." Mr. Quick seconded.
A member said that rule should make it clear that the court will provide the interpreter as part of the court's duty to provide access to the court system.
The motion CARRIED.
A member asked whether the rule should specify that costs for interpreters be taken from the state court administrator's budget. A member pointed out that N.D.C.C. § 28-33-05 on interpreters for deaf people already specifies that compensation must be paid by the "appointing authority." A member said that costs for interpreters would be very hard to budget due to varying needs for them. A member said that annual costs for interpreters are less than most people would assume and that these costs could be paid for out of the existing state court budget.
The motion to approve the amendments to Rule 43 CARRIED.
Judge McCullough MOVED to remove Rule 28 from the table. Judge Reich seconded. Motion CARRIED.
Prof. Moore Jackson MOVED to approve the proposed amendments to Rule 28 and to change "assign" on page 63, line 7, to "provide." Mr. Quick seconded. Motion CARRIED.
The meeting recessed at 4:45 p.m. on April 25, 2012.
April 26, 2013 - Friday
The meeting was called to order at approximately 9:00 a.m., by Justice Mary Muehlen Maring, Chair.
RULE 803, N.D.R.Ev., HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL; RULE 902, N.D.R.Ev., SELF AUTHENTICATION (PAGES 82-133 OFTHE AGENDA MATERIAL)
Staff said that the committee discussed proposed amendments to Rules 803 and 902 at the September meeting. The committee's discussion focused on what kind of certification is required under proposed new provisions in Rule 803(6) and Rule 902(11) and (12). In January, staff presented proposed amendments to Rules 803 and 902 intended to address the
certification questions raised in September. The committee took up the rules at the January meeting, but decided to table them pending legislative action on a measure that would have allowed unsworn declarations to be used like affidavits.
Judge McCullough MOVED to remove Rule 803 from the table. Judge Kleven seconded. Motion CARRIED.
Mr. Reierson MOVED to remove Rule 902 from the table. Judge McCullough seconded. Motion CARRIED.
Staff explained that the proposed new language in Rule 902 differed from the federal statute, which allows a certificate as prescribed by law. Staff said the proposed language was intended to define the type of certificate allowed in the rule itself, rather than referencing other law as in the federal rule.
A member said that the rule language did not seem to impose any time standards for the filing of a certificate, although it did say the opposing party was to be a given a fair opportunity to challenge a certificate. The member said if a party filed a certificate the day before trial, there would be no time to fairly challenge it. The member said there might be a need to put a time standard in the rule.
Staff said there was no time standard language in the federal rule, but that federal case law could provide guidance on what constituted a reasonable time to submit the certificate. The Chair suggested that this was an issue that could be addressed at the pretrial conference. A member said the issue with a certificate was that the party seeking to challenge it might desire to depose the person who executed it and it may be difficult to schedule a deposition into the time remaining after the pretrial.
A member asked why the legislature had rejected the bill to allow unsworn statements. Staff said that SBAND had opposed it, arguing that it was an infringement of the Supreme Court's constitutional authority to make rules of evidence. Staff said the legislature also objected to the concept of allowing unsworn statements as a general substitute for affidavits. Staff said the proposed amendments to Rule 902 would allow an unsworn statement to be used for the limited purpose of certifying that a document met the business records exception.
Staff said the legislature had passed an act allowing use of unsworn statements from foreign jurisdictions. The Chair suggested that the committee consider this act at a future meeting.
The main motion to approve the proposed amendments to Rule 803 CARRIED.
A member said that the concept of "reasonable notice" in Rule 902 raised concerns because of its vagueness.
Mr. Reierson MOVED to amend language at page 104, lines 98-99, to insert "Not less than 14 days" at the beginning of the sentence. Mr. Boschee seconded.
A member said that, in the case of a motion, it may be too much to require 14 days notice. The member said this requirement was likely to cause disputes between parties. A member suggested adding language to the rule to allow the court to waive the notice requirement. A member said that records custodians rarely have to testify; admission of records is almost always stipulated.
Mr. Hoy MOVED to delete "or an unsworn declaration made under penalty of perjury" at page 104, lines 97-98. Judge McLees seconded.
A member asked if any of the attorneys knew what the requirements were for an unsworn statement of the sort mentioned in the rule draft. Staff said language from the federal rule had been added to the explanatory note to explain the requirements for an adequate unsworn statement. A member said that allowing unsworn statements might be useful in some cases, but that state courts were not familiar with unsworn statements. A member said that unsworn statements are used in federal court, but it is easy to get a notary so allowing an unsworn statement in state court is generally not necessary.
A member commented that the laws of the United States should be referenced in the requirements for unsworn statements set out in the explanatory note. A member said that one concern about allowing unsworn statements is that unsworn statements from other states would need to be accepted under the rule and there seems to be no standard for these. The member said that making it easier to admit business records is a good thing, but that requiring a sworn affidavit would help ensure that the business records admitted were legitimate. The member said it is clear someone can be prosecuted for swearing out a false affidavit; it is not necessarily clear what the penalty is for making a false unsworn statement. The member said requiring an affidavit provides a useful check and balance in the process.
By unanimous consent, staff was instructed to correct the Rule 903 explanatory note to reflect the amendments approved by the committee.
The main motion to approve the proposed amendments to Rule 903 CARRIED.
RULE 68, N.D.R.Civ.P., OFFER OF SETTLEMENT OR CONFESSION OFJUDGMENT;TENDER (PAGES 134-148 OF THE AGENDA MATERIAL)
Staff explained that, at the January meeting, the committee discussed a request to amend Rule 68 to allow plaintiffs to receive double costs if a defendant rejected a formal offer of settlement and the plaintiff later obtained a more favorable result at trial. While the committee rejected the double costs approach, it directed staff to prepare proposed amendments to Rule 68 that would incorporate Minnesota's more detailed procedure for offers of settlement. Staff presented the new proposed amendments to the committee.
Mr. Hoy MOVED to approve the proposed amendments to Rule 68. Judge Marquart seconded.
A member asked if any of the practitioners on the committee had used the Minnesota "damages only" approach. A member said that typically the "total obligation" alternative is used. A member said that using the "damages only" approach seemed to be a trap because an attorney would not know about important items like costs at the time of making an offer. A member said that even under the current North Dakota rule, an attorney would have to specify that an offer included costs.
A member said if the committee decided to accept the more detailed Minnesota system, it should also accept the part of the Minnesota rule that allows plaintiffs to obtain double costs.
Mr. Dunn MOVED to delete the proposed language on page 138, lines 68-72, and replace it with language from Minnesota Rule 68.03 (b)(1) and (2), found on page 147 of the meeting materials. Judge McCullough seconded.
A member said that the Minnesota language offers the "traditional" outcome when a defendant prevails with an offer of settlement: the plaintiff not collecting its own costs and paying the defendant's costs. The member said the Minnesota language also offers a fairer outcome when the plaintiff prevails on its offer, with the plaintiff collecting double costs. The member said this was a balanced approach, and if the committee decides to reject this approach, we should just keep the current rule.
A member said the motion seemed to be intended to revive the double costs proposal the committee voted down at the January meeting. A member said the motion was different because the rejected January proposal was based on the New Mexico rule while this proposal
was based on the Minnesota approach taken in full, with the double costs provision as one aspect of the whole. A member said that the January proposal was for full double costs while the Minnesota rule acted more as a restriction on costs.
A member said the purpose of the rule was to encourage settlements so that parties could avoid going to court. The member said that the proposed amendments would not serve this purpose. A member said that the committee should just retain the existing rule because the bar is familiar with how it operates and because it better follows the federal rule, so federal case law can be relied on in disputes. The member also said that because expert witness fees are part of the costs that are assessed in North Dakota, unlike many other jurisdictions, costs awards are already quite high in the state and could become extremely costly if doubled. The member said that the settlement process is working in North Dakota and very few civil cases go to trial. The member questioned whether there was any need to amend the rule to further encourage the settlement process.
A member said that plaintiffs do not have a true incentive to make a Rule 68 offer under the current rule because plaintiffs will already be able to collect costs if they prevail at trial and they do not want to box themselves in by making a Rule 68 offer. The member said if there was a chance that plaintiffs could collect double costs, they would have an incentive to make Rule 68 offers and defendants would have a greater incentive to respond to these offers in a reasonable way. The member said that, under the current rule, a plaintiff has to thoughtfully consider any Rule 68 offer a defendant makes because there is a risk that if the offer is rejected, the plaintiff may suffer even if they prevail at trial. The member said that defendants do not face this same kind of risk when considering a Rule 68 offer from a plaintiff.
A member said there is some incentive for a plaintiff to make a Rule 68 offer under the current rule. The member said that disbursement of costs is discretionary with the court, but if a defendant rejects a Rule 68 offer they may be required to pay costs regardless of what the court might otherwise have ordered. The member said a defendant also must face the possibility of paying pre- and post-judgment interest when a Rule 68 offer is made.
A member said the reason the committee began discussing amendments to Rule 68 was out of a desire to allow all parties in a case to have tools to use to facilitate settlement.
A member said that judges usually do not reduce costs when a plaintiff prevails, so a defendant always faces the risk of paying costs and a plaintiff does not need to make a Rule 68 offer to collect. A member said that costs usually only get reduced by the court when the party seeking costs does something outrageous.
A member said that payment of costs in some cases, such as condemnation, is required by statute. The member said if the committee approved amendments to Rule 68, careful consideration would need to be given to the interplay of the rule with these statutes.
A member said that only two states, New Mexico and Minnesota, allowed double costs to plaintiffs under their versions of Rule 68. The member said allowing double costs was definitely a minority rule.
The motion CARRIED 8-7.
A member said there was no compelling reason to adopt the proposed changes to the rule. The member said that parties understand the existing rule and are using it to settle cases. The member said that if difficulties arise in interpretation of the current rule, courts and the parties can rely on federal case law to resolve questions.
A member said that although allowing double costs had been adopted in only a minority of jurisdictions, there was a trend in the direction of double costs.
A member said that the existing rule works and that the proposed change is a significant change that seems unnecessary. A member said courts rarely see cases that involve Rule 68 issues, possibly because most of them are settling before trial. A member said the Minnesota rule is not a good model for amendments because it is complex and confusing.
The main motion to approve the proposed amendments to Rule 68 FAILED 6-8.
RULE 8.10, N.D.R.Ct., UNIFORM COLLABORATIVE LAW RULE (PAGES 149-211OFTHE AGENDA MATERIAL)
The Chair welcomed attorney Krista Andrews to provide an overview of the collaborative law process.
Ms. Andrews said that her firm first got involved with collaborative law in 2012. She said two of the firm's practitioners trained at the Collaborative Law Institute in Minneapolis and then the firm brought a team from the institute to provide training to other staffers. She said that collaborative law had become quite popular in Minnesota, California, and Texas and was beginning to expand to other states.
Ms. Andrews said an international collaborative law association started in 1999 and has 4,000 members from 24 countries. She said the vision behind collaborative law is to create a support system for families as they go through the divorce process in order to
restructure the family. She said collaborative law is intended to provide a healing process rather than a divisive conflict. She said that when the parties themselves make decisions related to family restructuring and guide the process, they are more satisfied with the result and more successful dealing with issues that arise in the future.
Ms. Andrews said collaborative law is another form of alternative dispute resolution. She said there is a team of professionals involved, including a divorce coach if needed. She said all parties and team members sit together in the same room to negotiate the agreement. She said that if the parties are not able to reach an agreement and the collaborative process is abandoned, all the attorneys involved are required to withdraw. Because of this requirement, all the attorneys involved are focused on getting the matter settled.
Ms. Andrews said everyone involved in a collaborative divorce is required to voluntarily exchange all relevant information without the need for discovery requests. If an attorney finds that a client is not cooperating and providing relevant information, the attorney can withdraw.
Ms. Andrews said attorneys take a backseat during collaborative law negotiations, they provide feedback and counseling but do not drive the process. She said that mental health professionals, such as a divorce coach and child specialists, play a substantial role. Financial specialists work on the money matters and help with division of assets and budgeting.
Ms. Andrews said that collaborative divorce need not be more expensive than regular divorce even though more professionals are involved. The attorneys involved, for example, will not be billing to prepare and fight over discovery. Instead, specialists work in their areas of expertise and the result is more cost effective. And if there are disputes, outside mediators or area experts can be brought in to resolve them, which is less expensive than going to court.
The Chair asked how the parties pay for the divorce. Ms. Andrews said that payment division is negotiated collaboratively, and that all the specialists involved are paid separately.
Ms. Andrews said that a big issue that attorneys face is the shift from being an advocate to being one person involved in a dialogue, a person who possibly offers ideas and advice that is useful to the opposing party. Parties also have to deal with having an open discussion on all the issues involved in the divorce.
Ms. Andrews said that another advantage of collaborative law over normal divorce is that if problems develop in the future, the collaborative team can re-engage to try to resolve them.
Ms. Andrews said that if there are children, they are also involved with the collaborative process and get to give their input on what the result should be, with the child specialist as a facilitator.
Ms. Andrews said collaborative divorce seems most useful when the parties have children or when there are complicated financial matters involved. She said when people know what they want out of their divorce, the collaborative process may not be appropriate, but when there are contentious issues involved, collaborative divorce is helpful in obtaining resolution.
As far as ethics is concerned, Ms. Andrews said there is an ABA formal opinion that says it is legitimate to engage in the collaborative process and this has been backed by the North Dakota ethics committee.
A member asked how long it took for a case to be resolved using the collaborative process. Ms. Andrews said that collaborative cases were not subject to scheduling orders and the course of each case was client driven; cases can go quickly when clients desire or the process can extend to a longer term.
A member commented that collaborative divorce seems to require both reasonable lawyers and reasonable clients. Ms. Andrews agreed and said this is why collaborative divorce is typically not used in cases involving domestic violence or abuse.
A member said that the proposed rule would allow the collaborative process to be used after a case is filed. Ms. Andrews said this would be acceptable if the parties agreed to a stay, but if the parties decided to seek interim relief, the collaborative process could not continue and the collaborative attorneys would need to withdraw.
Ms. Andrews said one barrier to collaborative divorce in North Dakota was the rigidity of the state's child support lawsparties are not allowed to make child support agreements that are contrary to the state's rules.
The Chair thanked Ms. Andrews for helping the committee understand the collaborative process.
Staff explained that the committee had briefly discussed a proposal by Judge Gail Hagerty at the January meeting to adopt the Uniform Collaborative Law Rule. Staff presented the committee with the proposed rule draft and additional information about collaborative law.
Judge McLees MOVED to adopt proposed new Rule 8.10. Judge Fontaine seconded.
A member said the main concerns about adopting a collaborative law rule in North Dakota were time and cost: cases can stay on the docket without resolution for an indeterminate amount of time and the cost of employing a collaborative law team can be substantial. The member said that Ms. Andrews had made a good case that costs in a collaborative divorce can be lower than those in a contentious divorce.
A member said that there is nothing in the proposed rule that would compel any party to use collaborative law. At the same time, the member said, there does not seem to be anyone from the collaborative law community who has requested adoption of the uniform rule in North Dakota. A member questioned whether the uniform rule should be adopted as a Rule of Court, given that it addresses many matters not even connected with the court. A member said part of the uniform proposal might be better placed in the Rules of Evidence, particularly the material on privilege. A member said if a Rule of Court on collaborative law is needed, the Minnesota rule may be a better model.
The main motion to adopt proposed new Rule 8.10 FAILED.
A member said that having an elaborate collaborative law rule like the uniform rule did not seem necessary. A member suggested that the committee could consider a simpler rule based on the Minnesota rule.
By unanimous consent, the committee requested that staff prepare an alternative collaborative law rule based on the Minnesota rule for consideration by the committee at the September meeting. The committee also requested that staff also prepare a collaborative law privilege rule based on the sections of the uniform rule that address privilege.
RULE 6, N.D.R.Civ.P., COMPUTING AND EXTENDING TIME; TIME FORMOTIONPAPERS; RULE 26, N.D.R.App.P., COMPUTING AND EXTENDING TIME; RULE 45,N.D.R.Crim.P., COMPUTING AND EXTENDING TIME (PAGES 212-225 OF THEAGENDA MATERIAL)
Staff said that Chief Deputy Clerk Petra Hulm had requested that the time rules be supplemented to better explain the "three day rule." Staff said that Appellate Rule 26, Civil Rule 6 and Criminal Rule 45 were all recently amended to clarify language about the three day extension, but that none of them contain any language explaining how this extension should be calculated. Staff presented the committee with proposed explanatory note amendments that would add a description of how to count the extension. Staff also said that an attorney had pointed out an inconsistency between the Rule 6 text and the explanatory
note and that proposed amendments had been drafted to address the issue.
Judge McCullough MOVED to adopt the proposed amendments to Rule 26. Mr. Hoy seconded.
The Chair explained that the language of the rule was the same as the language of Fed.R.App.P. 26 and that the proposed amendment to the explanatory was based on the language of the federal explanatory note.
Judge McCullough MOVED to adopt the proposed amendments to Rule 6. Judge Marquart seconded.
Judge McCullough MOVED for adopt the proposed amendments to Rule 45. Judge Marquart.
The proposed amendments to N.D.R.App.P 26, N.D.R.Civ.P. 6 and N.D.R.Crim.P. 45 will be sent to the Supreme Court as part of the Annual Rules Package.
RULE 101, N.D.R.Ev., SCOPE; DEFINITIONS (PAGES 226-230 OF THE AGENDAMATERIAL)
Staff presented proposed amendments to Rule 101 consistent with the 2011 form and style amendments to Fed.R.Ev. 101. Staff said the amendments included a new definitions section.
Mr. Quick MOVED to adopt the proposed amendments to Rule 101. Mr. Hoy seconded.
Motion CARRIED. Rule 101 will be made part of the Evidence Rules Package.
RULE 501, N.D.R.Ev., PRIVILEGES RECOGNIZED ONLY AS PROVIDED (PAGES231-234 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 501 based on the 1999 amendments to
the Uniform Rules of Evidence. Staff said that the main change proposed was replacing the term "writing" in the rule with the term "record" to account for electronic records and documents.
Judge McCullough MOVED to adopt the proposed amendments to Rule 501. Mr. Dunn seconded.
Motion CARRIED. Rule 501 will be made part of the Evidence Rules Package.
RULE 502, N.D.R.Ev., LAWYER-CLIENT PRIVILEGE (PAGES 235-246 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 502 based on the 1999 amendments to the Uniform Rules of Evidence. Staff said that the main change proposed was adding the language "or reasonably believed by the client to be employed" to paragraph (a)(5) and adding language limiting the privilege when a lawyer is required to defend against allegations of criminal or fraudulent conduct.
Mr. Quick MOVED to adopt the proposed amendments to Rule 502. Judge Kleven seconded.
A member asked why the detailed definition of "person" on page 236, lines 4-5, had been deleted. Staff said it was deleted in the amendments to the uniform rule and seemed to reflect the drafters intent to use "person" as a general term that includes business organizations while using "individual" as a more limiting term including only natural persons.
A member said that eliminating the detailed definition of "person" in Rule 502 was a cause for concern because there was no other definition of "person" in the evidence rules that indicated that the term extended to corporations and other organizations. A member said that the rule should make it clear that "person" also extended to municipal and governmental organizations.
Judge McCullough MOVED to amend the proposal to retain the definition of "person" on page 236, lines 4-5. Mr. Dunn seconded. Motion CARRIED.
The main motion CARRIED. Rule 502 will be made part of the Evidence Rules Package.
RULE 503, N.D.R.Ev., PHYSICIAN AND PSYCHOTHERAPIST-PATIENT PRIVILEGE(PAGES 247-258 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 503 based on the 1999 amendments to the Uniform Rules of Evidence. Staff said that the main substantive change proposed was extending the privilege to mental health providers.
Judge Kleven MOVED to adopt the proposed amendments to Rule 503. Mr. Beehler seconded.
Judge Merrick MOVED to amend on page 251, lines 44-45, to replace the overstruck language with "chemical dependency." Judge Marquart seconded.
A member suggested that "chemical dependency" needed to be added to the definition of mental health provider to replace a similar reference to alcohol and drug addiction. A member said that the commitment statute specifically referred to chemical dependency and allowed commitment of a person for mental illness or chemical dependency.
A member questioned whether the privilege should be extended beyond physicians, psychologists and psychiatrists as proposed. The member said these medical professionals have specific and clearly understood qualifications and are licensed and certified to provide treatment. The member said language extending the privilege to all "mental health providers," including persons authorized to provide treatment for "emotional health," is particularly problematic.
A member said that "mental health professional" is defined in N.D.C.C. § 25-03.1-02. The member said using the statutory definition would be less vague than the proposed definition in the uniform rule.
Mr. Boschee MOVED to submit the rule to staff for revision and reconsideration at a future meeting. Motion FAILED for lack of a second.
A member suggested that the proposal be redrafted to limit the privilege to physicians and psychotherapists. A member responded that psychotherapist was an obsolete term and that "mental health professional" was the accepted term. A member said that "mental health professional" as defined by the statute seemed too broad a term because it included social workers. A member said the qualifications for social workers included in the term "mental health professional" were very specific and demanding. A member said it would be
appropriate for the rule to cover all who fit the definition of "mental health professional" under the statute.
A member said it would be dangerous for the privilege to be expanded too broadly because this would mean that valuable evidence could be excluded. The member said that if the committee does decide to expand the privilege, the people it covers need to be very well defined so that counsel have guidance if they need to send clients for mental health treatment. The member said that the existing language of the rule at page 250, lines 27-28, which covers people who are participating in diagnosis and treatment under direction of a physician, may already cover social workers and nurses.
Mr. Hoy MOVED to restore the current language of the existing rule and to add an amendment substituting "mental health professional" for "psychotherapist" throughout. Judge McCullough seconded. Motion WITHDRAWN.
Mr. Hoy MOVED to amend on page 249, lines 11-13, to substitute "professional" for "provider" and to replace the remaining language in the paragraph with the existing rule language at page 249-250, lines 19-23. Mr. Boschee seconded.
A member said that the motion should not be adopted because the intent of the rule is to provide a privilege for people who seek medical or mental health services to be free and open with anyone who is authorized to provide those services without worrying about whether anything they say can be divulged. The member said the statute sets out the people whom the public policy of the state has decided should be considered legitimate mental health professionals who may provide mental health services in North Dakota. The member said that the rule should be consistent with the statute and state public policy.
A member said if the motion was approved the definition of "mental health professional" under the rule would be inconsistent with the statutory definition.
The motion FAILED.
Mr. Quick MOVED to amend page 249, lines 11-13, to replace "Mental Health Provider" with "Mental Health Professional" and to replace the proposed definition with the definition from N.D.C.C. § 25-03.1-02. Mr. Beehler seconded.
A member asked about the definition of "accredited program," which is a term used in the statute. A member responded that there is national accreditation in mental health as in any other profession. The member said that the University of North Dakota has an accredited program.
A member said that classifying someone as a mental health professional based on years of experience in the field, as does the statutory definition, makes it hard to know whether the privilege should apply in a given case. A member responded that the statute simply applied a minimum experience requirement to certain professionals. The member said that the purpose of the privilege rule was to allow people to get mental health help without being penalized for any disclosures they might make. A member replied that having a minimum experience requirement for some professionals was a barrier to the rule's purpose because it suggested that a person would have to make inquiries about the professional's years of experience before making any disclosures.
A member said that it is possible that the patient privacy and non-disclosure rules of the groups that oversee the mental health professionals covered by the rule might actually be stronger than the privilege provided by the rule.
A member said that rule is defining a privilege, which by its nature is contrary to the truth seeking nature of a trial. The member said that whatever the rule defines as privileged is not going to be admissible at trial so the committee needs to make sure the privilege is not overly broad.
A member said the general rule established under Rule 503 is that communication is not privileged unless it is made for the purpose of diagnosis or treatment. The member said any communication about other topics, for example tax evasion, would not be privileged even if made to a doctor or mental health professional.
A member said one problem with taking the statutory definition and putting it into the rule is that, under the rule, a communication would be privileged if a person reasonably believed the person they were talking to was a mental health professional. The member said this would mean the person seeking mental health services would have to reasonably believe, for example, that the psychologist they were consulting had at least a master's degree, as required by the definition. The member said this seemed to be a heavy burden to place on a person.
A member responded that if a patient went to someone's office and there were certificates on the wall and the person held themselves out as treating mental illness, it would be reasonable to believe the person was a mental health professional. A member said, however, that the reasonable belief exception would be eliminated under the current motion language as to mental health professionals. A member said that the rule should not be amended to include the definition alone without the reasonable belief language. A member said this could be corrected by amending the motion language.
Judge Merrick MOVED to amend the motion to add "or reasonably believed by the patient to be a mental health professional." Judge Kleven seconded. Motion to amend motion CARRIED.
The motion as amended CARRIED.
A member asked whether the rule as amendment would supersede statutes creating an addiction counselor privilege. Staff said the committee would have to decide whether to take that step. Staff informed the committee that cross-references to the addiction counselor privilege statutes had been added to the explanatory note. A member observed that some legal authority maintains that privileges are substantive, not procedural, and that privileges should be set out in statutes rather than the procedural rules.
A member pointed out that there were several new exceptions to the privilege that had been added to the uniform rule and proposed in the amendments to Rule 503. Staff said these exception amendments limited the scope of the Rule 503 privilege.
The main motion to approve the amendments to Rule 503 CARRIED. The rule will be made part of the Evidence Rules Package.
RULE 504, N.D.R.Ev., HUSBAND-WIFE PRIVILEGE (PAGES 259-265 OF THEAGENDA MATERIAL)
Staff presented proposed amendments to Rule 504 based on the 1999 amendments to the Uniform Rules of Evidence. Staff said that the main change proposed was extension of the privilege to civil cases.
Mr. Quick MOVED to adopt the proposed amendments to Rule 504. Judge Kleven seconded.
A member said that the privilege should not be extended to civil matters. The member said that civil cases do not involve the consequences of criminal cases. The member said extending the privilege could lead to the exclusion of evidence important to the resolution of issues between parties.
A member pointed out a proposed change allowing the spouse of an accused to refuse to testify against the accused spouse, but not mentioning the accused spouse's right to the privilege. Staff said that the rule had been reorganized and language allowing the accused spouse to claim the privilege was in the general marital privilege part of the rule.
The main motion to approve the amendments to Rule 504 CARRIED. The rule will be made part of the Evidence Rules Package.
RULE 505, N.D.R.Ev., RELIGIOUS PRIVILEGE (PAGES 266-270 OF THEAGENDAMATERIAL)
Staff presented proposed amendments to Rule 505 based on the 1999 amendments to the Uniform Rules of Evidence. Staff said that the main change proposed was eliminating gender specific language in the rule.
Judge Marquart MOVED to adopt the proposed amendments to Rule 505. Mr. Dunn seconded.
The main motion to approve the amendments to Rule 505 CARRIED. The rule will be made part of the Evidence Rules Package.
RULE 506, N.D.R.Ev., POLITICAL VOTE (PAGES 271-274 OF THE AGENDAMATERIAL)
Staff presented proposed amendments to Rule 506 based on the 1999 amendments to the Uniform Rules of Evidence. Staff said that the main change proposed was to eliminate gender-specific references and add the phrase: "or determines that disclosure should be compelled under the election laws of the state."
Judge McCullough MOVED to adopt the proposed amendments to Rule 506. Judge Kleven seconded.
The main motion to approve the amendments to Rule 506 CARRIED. The rule will be made part of the Evidence Rules Package.
RULE 507, N.D.R.Ev., TRADE SECRETS (PAGES 275-280 OF THE AGENDAMATERIAL)
Staff presented proposed amendments to Rule 507 based on the 1999 amendments to the Uniform Rules of Evidence. Staff said that the main change proposed was to replace gender-specific references with "person."
Mr. Beehler MOVED to adopt the proposed amendments to Rule 507. Judge Reich seconded.
A member suggested that there should be some reference in the explanatory note to the definition of "person" under the rule as it is defined in a broader way than "individual" in the privilege rules. By unanimous consent, the committee instructed staff to draft language for the explanatory note on the definition of "person."
The main motion to approve the amendments to Rule 507 CARRIED. The rule will be made part of the Evidence Rules Package.
RULE 508, N.D.R.Ev., SECRETS OF STATE AND OTHER OFFICIAL INFORMATION; GOVERNMENTAL PRIVILEGES (PAGES 280-289 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 508 based on the 1999 amendments to the Uniform Rules of Evidence. Staff said that the main change proposed was to add titles to the rule's subdivisions.
Mr. Beehler MOVED to adopt the proposed amendments to Rule 508. Judge Marquart seconded.
The main motion to approve the amendments to Rule 508 CARRIED. The rule will be made part of the Evidence Rules Package.
RULE 509, N.D.R.Ev., IDENTITY OF INFORMER (PAGES 290-299 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 509 based on the 1999 amendments to the Uniform Rules of Evidence. Staff said that the main amendments proposed were to change "person" to "individual" throughout the rule.
Mr. Quick MOVED to adopt the proposed amendments to Rule 509. Judge Fontaine seconded.
The main motion to approve the amendments to Rule 509 CARRIED. The rule will be made part of the Evidence Rules Package.
RULE 510, N.D.R.Ev., WAIVER OF PRIVILEGE (PAGES 300-304 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rule 510 based on the 1999 amendments to the Uniform Rules of Evidence. Staff said that the proposed amendments combine the content of current rules 510 and 511 to create a single rule on waiver of privilege.
Judge Merrick MOVED to adopt the proposed amendments to Rule 510. Mr. Dunn seconded.
The main motion to approve the amendments to Rule 510 CARRIED. The rule will be made part of the Evidence Rules Package.
RULE 511, N.D.R.Ev., PRIVILEGED MATTER DISCLOSED UNDER COMPULSIONOR WITHOUT OPPORTUNITY TO CLAIM PRIVILEGE; RULE 512, N.D.R.Ev.,COMMENT UPON OR INFERENCE FROM CLAIM OF PRIVILEGE; INSTRUCTION(PAGES 305-313 OF THE AGENDA MATERIAL)
Staff presented proposed amendments to Rules 511 and 512 based on the 1999 amendments to the Uniform Rules of Evidence. Staff said the proposed amendments delete the content of current rule 511 and replace it with the content of current Rule 512.
Mr. Quick MOVED to adopt the proposed amendments to Rule 511 and 512. Judge McCullough seconded.
The main motion to approve the amendments to Rules 511 and 512 CARRIED. The rules will be made part of the Evidence Rules Package.
RULE 1101, N.D.R.Ev., APPLICABILITY OF RULES (PAGES 314-323 OF THEAGENDA MATERIAL)
Staff presented proposed amendments to Rule 1101 consistent with the 2011 form and style amendments to Fed.R.Ev. 1101. Staff explained that the amendments included a new subdivision (e), which is intended to account for situations in which a procedural rule outside the rules of evidence may have bearing on a question of admissibility.
Judge Reich MOVED to adopt the proposed amendments to Rule 1101. Judge McCullough seconded.
Mr. Quick MOVED to delete language at page 316, lines 31-32, and to amend the explanatory note to reflect the language change. Judge Marquart seconded. Motion CARRIED.
The main motion to approve the amendments to Rule 1101 CARRIED. The rule will be made part of the Evidence Rules Package.
COMPLETED FORM AND STYLE AMENDMENTS TO THE NORTH DAKOTARULES OF EVIDENCE (PAGES 324-499 OF THE AGENDA MATERIAL)
Staff said that the committee had now completed its review of the Rules of Evidence and presented the committee with the amendments it had approved during the course of the review. Staff asked whether the committee wanted to present the Rules of Evidence amendments to the Supreme Court as part of its annual rules petition.
Mr. Quick MOVED to send the proposed amendments to the Rules of Evidence contained in the Evidence Rules Package to the Supreme Court. Judge Kleven seconded.
The meeting adjourned at approximately 12:00 noon on April 26, 2013.
Michael J. Hagburg