MINUTES OF MEETING
Joint Procedure Committee
September 28-29, 2006
TABLE OF CONTENTS
Annual Rules Package 2
Rule 4, N.D.R.Civ.P., Persons Subject to Jurisdiction--Process--Service 3
Rule 54, N.D. Sup. Ct. Admin. R., Safe Courtroom Firearms Handling 4
Rule 3, N.D.R.Civ.P., Commencement of Action
5
Rule 37, N.D.R.Crim.P., Appeal as of Right to District Court; How Taken; Rule 43,
N.D.R.Crim.P., Defendant's Presence 8
Rule 4.2, N.D.R.Ct., Notice 10
Recognition of Retiring Members 11
Rule 10.1, N.D.R.Ct., Conduct in Court 11
Rule 50, N.D.R.Civ.P., Judgment as a Matter of Law in Jury Trials 12
Rule 404, N.D.R.Ev., Character Evidence Not Admissible to Prove Conduct, Exceptions:
Other Crimes 13
Rule 408, N.D.R.Ev, Compromise and Offers to Compromise 14
Rule 606, N.D.R.Ev, Competency of Juror as Witness 16
Rule 609, N.D.R.Ev, Impeachment by Evidence of Conviction of Crime 16
Rule 26, N.D.R.Civ.P., General Provisions Governing Discovery 18
Rule 33, N.D.R.Civ.P., Interrogatories to Parties; Rule 34, N.D.R.Civ.P., Production of
Documents and Things and Entry Upon Land for Inspection and Other Purposes 20
Rule 37, N.D.R.Civ.P., Failure to Make or Cooperate in Discovery; Sanctions 22
Rule 45, N.D.R.Civ.P., Subpoena 25
For the Good of the Order 27
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on September 28, 2006, by the Chair, Justice Dale Sandstrom.
ATTENDANCE
Present:
Justice Dale V. Sandstrom, Chair
Honorable Georgia Dawson (Thurs. only)
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Honorable Donovan Foughty (Thurs. only)
Honorable M. Richard Geiger
Honorable Gail Hagerty
Honorable David W. Nelson
Honorable Allan L. Schmalenberger (Thurs. only)
Honorable Thomas J. Schneider
Honorable Mikal Simonson
Honorable Michael G. Sturdevant (Thurs. only)
Mr. John C. Kapsner
Mr. Daniel S. Kuntz
Mr. Galen J. Mack
Mr. Ronald H. McLean
Ms. Sherry Mills Moore
Mr. Steven W. Plambeck
Mr. Bruce D. Quick
Ms. Cathy Howe Schmitz (Thurs. only)
Absent:
Honorable Debbie Kleven
Ms. Jeanne L. McLean
Staff:
Mike Hagburg
Kim Hoge
PRELIMINARY MATTERS
The Chair discussed the schedule for the meeting and reviewed the dates of future meetings.
Ms. Moore MOVED to approve the minutes. Ms. Schmitz seconded. Motion CARRIED unanimously.
ANNUAL RULES PACKAGE (PAGES 25-29 OF THE AGENDA MATERIAL)
Staff informed the Committee that the annual rules package had been submitted to the Supreme Court and that a hearing on the package had been scheduled for October 25, 2006.
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The Chair informed the Committee that Arizona had taken steps to post comments to its rules packages online. The Chair said that Arizona also accepted online comments on the posted comments. The Chair said that the Committee might think about whether North Dakota should take a step like this to inspire more discussion about proposed rule changes.
Staff explained that proposed amendments to Rule 4 were before the Supreme Court. Staff informed the Committee, however, that the Supreme Court had decided two recent cases involving issues similar to the ones the Committee addressed in its proposed amendments to Rule 4. Staff suggested the Committee discuss whether it should modify its Rule 4 proposal in light of the recent cases.
Mr. Kapsner MOVED to delete proposed new language in line 67 "unless the court finds excusable neglect." Judge Schneider seconded.
A member said that the language was approved by the Committee based on reasoning that voiding a summons was too harsh a remedy for failure to respond to demand to file complaint. The member said the language should be eliminated because voiding a summons is not a harsh remedy considering how easy it is to comply with a demand to file complaint.
The member said that the language also created problems because it would deny defendants a definite remedy--there would be no certainty that a complaint would be void if a plaintiff failed to respond to demand to file complaint. To gain certainty, the defendant would need to follow-up the demand to file complaint with a motion for a finding of no excusable neglect. The member said this would create a waste of time and resources.
A member asked if removing the excusable neglect language would eliminate the need to file a motion. A member responded that, under the existing language, if a plaintiff fails to timely file a complaint after receiving a demand to file, the action ceases to exist because service of the summons is void. A member responded that having a motion to dismiss for no excusable neglect is not a great hardship for a defendant.
A member said that it would be an advantage for a defendant in a case where a demand to file complaint was served to get a court decision on whether the service of the summons was void. The member said that the excusable neglect language would be useful in cases where there is an excuse for failing to timely file the complaint after receiving a demand to file.
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A member said that, without a strong sanction for failing to file a complaint on demand, there is no reason for the demand rule to continue to exist. The member said the demand rule was added to allow defendants to get rid of cases in which the complaint is not filed. The member said that, without a way to easily void the service of summons, the rule would be pointless.
A member said that excusable neglect is a reasonable and established standard that would not apply in every situation.
A member said that, even if service of summons is void in a case, there is nothing to prevent a plaintiff from serving it again, unless the limitations period had run. The member said the defendant would not be assured the lawsuit was over based solely on service of summons being void.
A member responded that, in many cases when the plaintiff has been dilatory about filing the complaint, the limitations period has run, so if the original service is void, then the action cannot be restarted.
The motion FAILED 4-11.
The consensus of the Committee was that it did not desire to make any additional changes to the proposal in response to the Supreme Court recent cases.
Staff reviewed the Committee's work on proposed Rule 54 at the April 2006 meeting and drew the Committee's attention to the comments on the rule that had been gathered in the interim between meetings.
Ms. Schmitz MOVED to approve the proposed rule. Judge Schneider seconded.
A member said that the comments from the sheriff of Williams County were on target: this is an unnecessary rule. The member said that the proposal set out some useful ideas and would make a good reference item in the benchbook, but that it was needed as a rule. The member said it should be distributed to judges to provide suggestions on procedure.
A member pointed out that under the rule's scope provision, the rule would apply to all firearms brought into a courtroom. The member asked whether the rule would apply to private citizens licensed to carry concealed weapons. A member replied that private citizens
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were forbidden by statute to bring concealed weapons into a courtroom.
Judge Geiger MOVED to strike "police" on line 9 and replace it with "peace." Judge Simonson seconded. The motion CARRIED 16-1.
A member asked whether judges generally allowed peace officers and bailiffs to wear their weapons in court. Several judges said they allowed this, while several said they allowed the sheriff to decide whether peace officers should wear firearms in the courtroom.
A member asked who had requested the rule. Staff explained that a judge had attended a court security conference and had been exposed to this rule.
A member commented that courthouse security is a serious issue in North Dakota. The member said that, outside of the major cities, there was no courthouse security.
A member asked why the rule put the clerk in charge of weapons in the courtroom. A member responded that clerks are in charge of evidence. A member asked whether it would make sense to put the bailiff in charge of weapons. Members responded that bailiffs generally would not be qualified to take on this responsibility.
A member said that, as a practical matter, there often is no clerk in the courtroom and the court reporter would need to take charge of evidence.
A member commented that the rule contained some good ideas that could promote safety and possibly prevent bad events from happening in the courtroom. A member said that the main factor working against the rule was that there were too many variables that the rule could not cover.
A member said that Texas' solution to the problem of having firearms in evidence was to make a wood cutout of the firearm and use that during the trial while keeping the actual firearm locked up.
The main motion to approve the proposed amendments to Administrative Rule 54 and send to the Supreme Court as part of the Annual Rules Package FAILED 5-11.
A member requested that staff send a copy of the proposal to the department in charge of the benchbook so that the proposal could be distributed to the state's judges.
RULE 3, N.D.R.Civ.P. - COMMENCEMENT OF ACTION (PAGES 76-91 OF THE AGENDA MATERIAL)
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Staff explained how the Committee had decided at the April 2006 meeting that it would be appropriate to take another look at idea of commencement by filing as used by the federal government and most other states. Staff presented a proposed amendments to Rule 3 consistent with the federal rule.
Judge Schmalenberger MOVED to approve the proposed amendments. Judge Hagerty seconded.
A member said that being able to use commencement by service was an advantage in malpractice cases. The member said that most malpractice cases were settled before any party felt the need to file. The member said cases would not be settled at the same rate under a system of commencement by filing because the defendants, facing public allegations, would feel a need to seek exoneration.
The member also said that there would be no benefit to commencement by filing in domestic relations cases, which constitute the vast majority of civil cases. The member said that privacy is important in domestic relations cases and that commencement by service contributes to privacy. The member added that debt collection lawyers have consistently opposed commencement by filing.
The member said that the bench typically is critical of commencement by service because it has no involvement in or control of the parties' activity. The member said that there are many types of litigation that benefit privacy during the early stages. The member said that the Committee should not approve the proposal.
A member responded that if parties want to keep a malpractice action quiet, they can threaten to file the action--commencement of an action is not a prerequisite to settlement negotiations. The member said that in domestic relations actions, the parties must file the action if they want or need any interim relief from the court, which many of them do. The member said, in collection actions, debt collectors use the name of the court system to extract money from debtors without filing an action. The member said that commencement by filing allows collection actions to be brought more swiftly to a conclusion.
A member said that the quirk in the existing system was that, by rule, parties cannot issue subpoenas unless the case is filed because subpoenas are required to contain the case number. The member said the parties issue subpoenas anyway, which the recipients could ignore if they desired .
A member said that commencement by filing would get the court involved in the case at an earlier date. The member said that parties should be encouraged to resolve the matter
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themselves without court involvement and that the court should not be involved unless the parties want it involved. The member said that early court involvement in all cases would lead to court calendars being overcrowded by reserved trial dates in cases that are likely to settle.
A member commented that in domestic relations cases, if the parties do not need an interim order or the court's help in moving things along, it is usually better for the parties to try to work things out themselves without court involvement. The member said the parties are more likely to reconcile or work things out amicably if the matter is not filed.
A member asked whether an alternative system, under which an action could be commenced by service or filing, could bring some benefits. A member responded that, in a case where the statute of limitations was a concern, filing establishes a definite date of commencement.
A member asked whether other rules would need to be changed if North Dakota adopted an alternative system. Staff explained that research on this question would be necessary.
A member commented that there did not seem to be any obvious downside to giving parties the alternative of commencing an action by filing if that is what the party wanted to do.
Judge Foughty MOVED to refer the matter back to staff for research and preparation of an alternative proposal that would allow an action to be commenced by service or filing. Judge Nelson seconded.
A member commented that having alternative methods of commencement did not seem to offer any advantages. The member said it made more sense to have one method or the other. The member said the key question was how much court involvement there should be early in a case and whether having increased early court involvement would lead to quicker resolution of lawsuits. The member said the issue boiled down to whether it was better to have more or less court involvement at early stages of lawsuits.
A member said that, if the measure is referred back for research, staff should also look into whether the existing commencement of actions statute is substantive or procedural. The member said that the issue of whether filing without timely service could fulfill the statute's requirements had been raised in a federal diversity case. The member suggested that the limitations periods prescribed by the legislature are based on service.
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A member said it was a good idea to study the issue. A member said, regardless of whether commencement by filing or service was in place, under the statute the key question was when the summons was handed to the sheriff for service. A member said that, in some parts of the state, it is not so easy to determine the right sheriff for service.
The motion to refer the matter back to staff for research and preparation of an alternative rule proposal CARRIED 11-5.
Staff explained that a recent Supreme Court case, City of Fargo v. Komad, involved a municipal court defendant who did not show up for his district court trial anew. Justice Maring, concurring in Komad, suggested that amendments to Rules 37 and 43 be considered to address the issue of the no-show trial anew defendant. Staff presented proposed amendments to these rules for the Committee to discuss.
Ms. Schmitz MOVED to approve the proposed amendments to Rule 37. Mr. Mack seconded.
Ms. Schmitz MOVED to replace "party appealing" on page 96, line 60, of Rule 37 with "appellant." Mr. Mack seconded. Motion CARRIED unanimously.
Ms. Schmitz MOVED to replace "a defendant" on page 99, line 123, of Rule 37's explanatory note with "an appellant." Ms. Moore seconded.
A member commented that the change was needed to make it clear that a case could be dismissed if the defendant or the prosecutor failed to show for the trial anew.
Motion CARRIED 16-1.
A member asked whether the court could assess fees upon a summary affirmance. A member commented that, since no trial is held, assessing trial fees may not be appropriate.
A member asked whether the court had to make any findings before entering a summary affirmance. A member replied that the proposed language gave the court discretion to summarily affirm, or not, when the appellant does not show up.
A member said that it was not clear from the proposed language that a summary
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affirmance was discretionary, rather than mandatory, when the appellant is a no-show. A member said the use of the word "may' in the rule and the word "allow" in the explanatory note indicated that the court would have discretion to enter a summary affirmance.
A member asked whether it was appropriate to give a judge discretion to decide whether a party should have a trial or not. The member suggested that the rule make summary affirmance mandatory upon the court finding certain facts. The member said this would remove the possibility of personal bias playing a role in a summary affirmance decision.
A member responded that allowing judges discretion is appropriate because the judge is in the best position to evaluate whether the appellant has a good reason for being absent. A member said the proposed amendments are a good idea because they give the court an opportunity to dispose of appeals that appellants are not committed to pursuing. The member said that summary affirmance does not deny anyone a trial because appellants to district court get trials at the municipal court level.
A member asked what steps the court needed to take in a case where a summary affirmance was a possibility. A member suggested that the court enter the summary affirmance and allow the appellant to take the matter to the Supreme Court if desired.
A member asked whether N.D.C.C. tit. 40 on appeals from municipal court addressed this issue. A member responded that a statute had specifically dealt with trial anew no-shows, but that the statute had been repealed in the course of court consolidation and unification. Staff indicated that the current municipal court appeal statute left it up to the Rules of Civil Procedure to set out appeal procedure.
The main motion to approve the proposed amendments to Rule 37 and send to the Supreme Court as part of the Annual Rules Package CARRIED 15-2.
Ms. Schmitz MOVED to approve the proposed changes to Rule 43's explanatory note. Judge Dawson seconded.
By unanimous consent, the word "defendant" on page 100b, line 39, of Rule 43 was changed to "appellant" to be consistent with the change to Rule 37.
A member asked whether this change was appropriate given that Rule 43's subject is "Defendant's Presence."
Judge Nelson MOVED to retain "defendant" on line 39. Ms. Schmitz seconded.
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Motion CARRIED unanimously.
The main motion to approve the proposed amendments to Rule 43 and send to the Supreme Court as part of the Annual Rules Package CARRIED unanimously.
RULE 4.2, N.D.R.Ct. - NOTICE (PAGES 116-126 OF THE AGENDA MATERIAL)
Staff explained that a newly amended federal law requires states receiving certain funds to have a rule mandating notice to foster parents of court proceedings involving their foster children. Staff said that proposed Rule 4.2 was drafted to satisfy the new federal requirement. Staff explained that, because the federal requirement takes effect Oct. 1, 2006, the deputy court administrator asked that the rule, if approved, be sent directly to the Supreme Court as an emergency measure.
Mr. Kapsner MOVED to approve proposed Rule 4.2 and send to the Supreme Court on an emergency basis. Judge Geiger seconded.
A member asked staff whether the new federal language discussing the "right" of foster parents to be heard should be added to the rule. Staff said that if the Committee thought it appropriate, the rule could be divided into subdivisions with one subdivision setting out this right.
A member said that the Juvenile Policy Board was involved in a three-year project to revise the juvenile code and that the Committee should get input from the Board before acting on this rule. Staff pointed out that the Board was working on determining what recommendations to make to the legislature on the juvenile statutes and that the Board would not be taking up any rules until that work was done.
A member said that language could be added to the proposed rule's explanatory note pointing out the federal changes regarding a foster parent's right to be heard at court proceedings.
Mr. Plambeck moved that the words "extending an opportunity to be heard" be added to line 4 of the proposal after the word "notice." Mr. Kuntz seconded.
A member said the proposed language was unnecessary. The member said that the constitution gives rights and statutes give rights. The member said that the proposed rules gives foster parents notice while the statute gives them a right to be heard. The member said it would be better to put the reference to rights in a comment so people could refer to the statute for more information.
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A member said that the proposed language was not necessary. The member said that enacting the rule as proposed was all that was needed to comply with the federal mandate. The member said the best thing to do was to give a reference in the explanatory note.
The motion FAILED on a voice vote.
Judge Hagerty MOVED to add language to the explanatory note as follows: "Section 438 [42 U.S.C. § 675] requires that states provide a case review system under which foster parents, pre-adoptive parents, or relatives providing care for a child receive notice of proceedings and are given a right to be heard." Ms. Schmitz seconded.
The motion CARRIED unanimously.
The main motion to approve the proposed rule and send to the Supreme Court on an emergency basis CARRIED unanimously.
RECOGNITION OF RETIRING MEMBERS
The Chair presented plaques to four longtime members of the Committee who were attending their last meeting: John Kapsner, a member since 1988; Judge Gail Hagerty, a member since 1992; Sherry Mills Moore, a member since 1994; and Judge Mikal Simonson, a member since 1997. The Chair expressed appreciation and gratitude for the retiring members' long service to the Committee.
RULE 10.1, N.D.R.Ct. - CONDUCT IN COURT (PAGES 127-130 OF THE AGENDA MATERIAL)
Staff explained that Committee members at the April meeting suggested that Rule 10.1 be amended to bar jurors from bringing cell phones into deliberations.
Judge Foughty MOVED to approve the proposed amendment. Judge Sturdevant seconded.
A member pointed out that jurors were not sequestered in most cases and had access to newspapers and other sources of news outside the courthouse. The member said that a cellphone was a safety device and that in hostage situations, fires, tornadoes and medical emergencies, it would be an advantage to jurors to have the cellphone with them in the jury room.
A member said that, even without a rule, judges often bar jurors from having
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cellphones during deliberations. The member said jurors are allowed to have cellphones with them during trial as long as the cellphones are shut off. The member said that jurors in deliberations need to be shut off from the outside world.
A member said that, instead of taking juror cellphones away during deliberations, jurors should just be required to turn off their phones during deliberation.
A member said that it is a rarity for jurors to be sent home at night during deliberations, so they typically are not exposed to outside influences during deliberations. The member said that while deliberating, jurors need to focus on deliberating.
A member said that jurors could also send and receive email using modern cellphones. The member said that this raises issues. A member said that jurors should not be allowed to send email during deliberations, especially email asking legal questions.
A member wondered whether the proposed amendment was in the right rule. The member said that N.D.R.Ct. 6.11 specifically deals with jurors. A member said that the rule was on predeliberation discussion by jurors.
A member suggested that N.D. Sup. Ct. Admin. R. 9 might be a better for place the amendment.
A member said the amendment should not be limited to wireless communication devices. The member said that jurors should not be allowed to have any communication device in the jury room.
The main motion to approve the proposed amendments to Rule 10.1 and send to the Supreme Court as part of the Annual Rules Package CARRIED 16 to 1.
Staff explained that Fed.R.Civ.P. 50 had been amended. Staff presented proposed amendments to N.D.R.Civ.P. 50 consistent with the federal amendments.
A typographical error on page 132, line 20, was corrected.
Judge Sturdevant MOVED to approve the proposed amendments to Rule 50. Judge Dawson seconded.
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A member asked what language in the old rule specified that a motion for judgment as a matter of law needed to be made or renewed at the close of the evidence. The member said such a motion could be made at any time before the case is submitted to the jury.
Staff explained that federal appeals courts were split on whether a motion for judgment as a matter of law needed to be renewed at the close of the evidence. Staff explained that the language that had been interpreted as requiring a renewal was in subdivision (b) of the rule.
A member said that amending Rule 50 to follow the federal rule was appropriate. A member said the proposed language eliminates the requirement to renew a motion for judgment as a matter of law.
A member said if the proposal is not approved, parties could use pre-amendment federal decisions to support an argument that renewing a motion is necessary. The member said the proposed amendment clarifies the issue.
A member pointed out that no legal organization opposed the amendments to the federal rule, and that some organizations characterized the prior language as a trap for the unwary.
The main motion to approve the proposed amendments to Rule 50 and send to the Supreme Court as part of the Annual Rules Package CARRIED 16-1.
Staff explained that Fed.R.Ev. 404 had been amended. Staff presented proposed amendments to N.D.R.Ev. 404 consistent with the federal amendments. Staff said the stated purpose of the federal amendments was to allow parties to rely on Rule 404's exceptions only in criminal cases.
Ms. Schmitz MOVED to approve the proposed amendments. Mr. Kuntz seconded.
A member commented that the character of a plaintiff or defendant may be relevant in a civil case. The member said that in an assault and battery case, it may be necessary for a party to testify about knowledge of the character of the opposing party to support a claim of self defense. The member said that eliminating exceptions that would permit the use of character evidence in a civil case goes too far.
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A member said that under the existing rule, character evidence will not be allowed in a civil unless there is a really good reason to let it in. The member said that under the proposal, character evidence will not get in even if there is a really good reason to let it in. The member said that if the court thinks a jury should hear something, it should come in.
A member said that, in a civil case, there is always a risk of going off track and focusing on something that is not relevant to the main issues. The member said the admission of character evidence would increase the risk of spending time on non-relevant matters.
A member said the proposed changes would not change much. The member said that N.D.R.Ev. 608 allows the admission of character evidence under certain circumstances. The member said the proposal just clarifies that character evidence will not be admitted under Rule 404--it does not bar admission of character evidence.
The main motion to approve the proposed amendments to Rule 404 CARRIED 10-7. Because the proposal was not approved by a 2/3 majority, the proposal will be considered again at the Committee's next meeting.
Staff asked whether an alternate version of the rule proposal should be prepared that updates the rule but that would not contain the language barring character evidence.
Judge Foughty MOVED for an alternate version of the rule proposal. Judge Simonson seconded. Motion CARRIED 16-1.
A member asked that staff also research Rule 608 and provide the Committee with material on its character evidence provisions.
RULE 408, N.D.R.Ev. - COMPROMISE AND OFFERS TO COMPROMISE (PAGES 187-222 OF THE AGENDA MATERIAL)
Staff explained that Fed.R.Ev. 408 had been amended, and staff presented proposed amendments to N.D.R.Ev. 408 consistent with the federal amendments. Staff pointed out that the most controversial part of the federal amendments related to the use of civil settlement negotiation evidence in criminal cases.
Mr. McLean MOVED to approve the proposed amendments. Mr. Kuntz seconded.
By unanimous consent, a typographical error on page 189, line 3, was corrected.
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A member said that there was no reason to accept the proposed amendment relating to use of settlement evidence in criminal cases. The member said that merely carrying on a negotiation with a government representative should not open the door to using evidence from the negotiation in a criminal case.
Mr. Kapsner MOVED to amend page 189, lines 12-16, by returning the material to its original form. Judge Simonson seconded.
A member said that allowing the use of negotiation evidence in a criminal case would have a chilling effect on settlement negotiations with government representatives. The member said there was no reason to make an exception to the rule against admissibility of settlement evidence in cases where the government was a party.
A member asked whether there was a reason for the exception in the federal rule. Staff explained that the federal amendment was the result of a compromise--the original federal proposal would have allowed admission of settlement negotiation evidence from any civil case in any criminal case.
A member pointed out that N.D.R.Ev.410 and N.D.R.Crim.P. 11 contain standards for the admission of evidence from plea discussions. The member said the proposed amendment reflects the actual practice of federal agencies, such as the Internal Revenue Service, that already warn people engaging in negotiations that what they say can be used in a criminal case.
A member said the motion to restore the former language was a good idea, because it also restored language on otherwise discoverable evidence. The member said this language prevents parties from presenting evidence at a mediation in order to insulate the evidence from being used at trial.
Motion to restore the previous language CARRIED unanimously.
A member raised the possibility that the rule's language would impede an insurance company's defense in a bad faith case. The member said the company has to be able to put into evidence the settlement amount it offered in order to defend itself. A member responded that use of the settlement offer would be permitted under subdivision (b) because in a such a case the settlement offer would be part of the subject matter of the lawsuit itself.
Mr. Kapsner MOVED to amend the explanatory note to reflect the Committee's action in restoring existing language to the rule. Ms. Schmitz seconded. Motion CARRIED unanimously.
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The main motion to approve the proposed amendments to Rule 408 and send to the Supreme Court as part of the Annual Rules Package CARRIED unanimously.
RULE 606, N.D.R.Ev. - COMPETENCY OF JUROR AS WITNESS (PAGES 223-247 OF THE AGENDA MATERIAL)
Staff explained that Fed.R.Ev. 606 had been amended, and staff presented proposed amendments to N.D.R.Ev. 606 consistent with the federal amendments. Staff said that the proposed change, which would allow jurors to testify about a mistake in entering the verdict on the verdict form, seemed consistent with North Dakota practice.
Judge Dawson MOVED to approve the proposed amendments and send to the Supreme Court as part of the Annual Rules Package. Mr. Quick seconded. The motion CARRIED 16-1.
Staff explained that Fed.R.Ev. 609 had been amended, and staff presented proposed amendments to N.D.R.Ev. 609 consistent with the federal amendments. Staff said the proposed changes related to admission of evidence related to crimes involving dishonesty or a false statement.
Judge Foughty MOVED to approve the proposed amendments. Judge Schmalenberger seconded.
A member asked what the word "readily" in the amendment meant. The member said that, given the case law existing on the rule, there was no need to change the rule's language.
A member said that the change would allow a court to go to the Pattern Jury Instructions and look up the elements of the offense involved to see if the offense involved dishonesty or false statement.
A member asked whether a court could access the jury instructions "readily." A member responded they were readily available.
A member pointed out that a mini-trial was not contemplated under the proposed amendments. A member said that the language seemed to be designed to make it easier for courts to determine whether an offense involved dishonesty or false statement.
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Judge Hagerty MOVED to amend page 249, lines 12-13, to delete the words "it readily can be determined that establishing." Ms. Schmitz seconded.
A member said that the proposed change would limit judges to looking only at the elements of the crime and not at the underlying facts. The member said that issuing a check without an account was one crime where looking at the underlying facts might change the analysis of whether the crime involved dishonesty or false statement.
A member commented that limiting the inquiry to looking at the elements of a crime would limit the discretion that judges currently have under the rule. A member replied that any decision by the court would be subject to the balancing test of N.D.R.Ev. 403. The member said that the proposed rule did not change the procedure in North Dakota as set out by case law.
A member said if the Committee wanted to give courts more discretion the word "establishing" could be left in.
A member said the comments to the federal amendments indicated that judges were in favor of the change because it allowed them to avoid a mini-trial.
A member commented that a bright line approach, as contemplated by the proposed amendments, might not be workable in actual practice.
A member said that a decision to admit evidence of a crime under Rule 609(a)(2) is not subject to Rule 403 balancing. The member said that the plain language of the rule indicates that Rule 403 only applies to evidence admitted under Rule 609(a)(1).
The motion CARRIED unanimously.
Judge Hagerty MOVED to strike language on page 251, lines 62-63, deleting "to track the 2006 amendments to Fed.R.Ev. 609." Mr. McLean seconded.
Mr. Mack MOVED a substitute motion to amend the language on lines 62-63 to read "in response to the 2006 amendments to Fed.R.Ev. 609." Motion FAILED for lack of a second.
The motion CARRIED 16-1.
Judge Schneider MOVED to delete language on page 251, lines 51-57, of the explanatory note. Mr. Kapsner seconded.
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A member said that the language should not be deleted because it provides some important information to lawyers.
The motion CARRIED 9-7.
The main motion to approve the proposed amendments to Rule 609 and send to the Supreme Court as part of the Annual Rules Package CARRIED 13-4.
The meeting recessed at approximately 4:00 p.m., on September 28, 2006.
September 29, 2006 - Friday
The meeting was called to order at approximately 9:00 a.m., by Justice Dale Sandstrom, Chair.
Staff explained that Fed.R.Civ.P. 26 had been amended to integrate material related to electronic discovery. Staff presented proposed amendments to N.D.R.Civ.P. 26 consistent with the federal amendments.
A member reported that the National Conference of Commissioners on Uniform State Laws as working on a draft Uniform Discovery of Electronic Records Act. The member said that attorney Larry Klemin was on the drafting committee, which was working with all stakeholders and interest groups. The member said that the drafting committee would be discussing the draft act in November 2006.
Mr. Quick MOVED to approve the proposed amendments. Judge Simonson seconded.
Mr. Kuntz MOVED to add the "or" between the words "reasonably accessible" and "because of undue burden or cost" on page 277, lines 28 and 30. Mr. Plambeck seconded.
A member said some electronic items that are "reasonably accessible" should be excluded from discovery because it is costly to track them down on all of an organization's personal computers or servers. The member said because state court rules did not provide many limits on discovery, discovery requests are often very broad and organizations often do not even know where to begin when responding.
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The member said it would be fine to allow such broad requests if costs were shared, but that currently in electronic discovery the party producing the material generally bears the cost, which is substantial. The member said that, ten years from now, businesses could be brought to a standstill by production requests because of the effort needed to go back to find and produce a decade's worth of electronic documents.
A member said the proposed language provided a solution to the problems involved with producing documents that in theory are "reasonably accessible." The member said that, under the proposed language, any document would be considered "not reasonably accessible" if producing it would create "undue burden or cost."
A member said that the proposed language seemed to set out a two-part test: that to be protected from discovery, an electronic record needed to be both not reasonably accessible and also burdensome to obtain.
A member responded that, as a practical matter, a court would ask three questions if a party objected to an electronic discovery request: where is the item, how much is it going to cost to get it, how many other resources will be expended to dig it out? The member said regardless of what terms were used in the rule, these would be the questions asked.
A member said that explanatory materials from the uniform act stated that the concept of accessibility is linked to cost--information that can be accessed only by incurring great costs is not discoverable without a showing of good cause.
A member commented that the proposed language in the rule stating that "[t]he court may specify conditions for the discovery" indicated that the court could require cost sharing as a condition of allowing discovery.
A member said it was unlikely that a court would find something to be "not reasonably accessible" when it is on a party's computer, even if a search for the item might be lengthy and time-consuming. A member responded that, under the rule, an item can become "not reasonably accessible" because of the difficulty involved in finding it.
A member said that one advantage of adopting the proposed language would be that the federal courts will develop case law based on the federal rule's language and this case law will help in interpreting the rule.
The motion to amend FAILED 3-9.
A member asked when the uniform law might be approved. The member asked
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whether it would be appropriate for the Committee to wait to deal with the issue until the uniform law was in place. A member responded that it might be some time before the uniform law was approved. The member suggested that the Committee may wish to invite Mr. Klemin to a future meeting to explain the status of the uniform law and the approval process.
A member commented that the Committee does not generally address uniform laws because, when they are adopted, they are typically adopted as statutes.
By unanimous consent, a typographical error on page 280, line 97, was corrected.
A member commented that the proposed "safe harbor" provision, which would be added to the rule as paragraph (b)(6), seemed contrary to the new professional responsibility rule on inadvertent transmission of information. The new professional responsibility rule allows some disclosure of privileged material that is received due to inadvertent transmission.
Staff was instructed to research the issue and report back so that Committee can decide whether cross-referencing the professional responsibility rule is appropriate or whether steps should be taken to harmonize the proposed Rule 26 language with the professional responsibility rule language.
Staff commented that the purpose of the "safe harbor" provision was to allow parties to produce electronic discovery material without pre-screening it for privileged material.
A member stated that the provision was important, but that it might be at odds with North Dakota privilege law, under which voluntarily disclosure of material may constitute a waiver of privilege. The member said that the Committee should look into whether North Dakota privilege rules need to be changed to make the "safe harbor" provision functional.
The main motion to approve the proposed amendments to Rule 26 and send to the Supreme Court as part of the Annual Rules Package CARRIED 9-1.
Staff explained that Fed.R.Civ.P. 33 and 34 had been amended to integrate material related to electronic discovery. Staff presented proposed amendments to N.D.R.Civ.P. 33 and 34 consistent with the federal amendments.
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Judge Geiger MOVED to approve the proposed amendments. Mr. Quick seconded.
A member questioned the proposed explanatory note language for Rule 33 on page 332. The member said that "business record" is defined by the legislature and this definition is a substantive issue. The member said the Committee could not expand the definition through a rule or explanatory note.
Mr. Kuntz MOVED to delete proposed language--the words "test, or sample"--in Rule 34 at page 334, line 6. Mr. Quick seconded.
A member stated that the language seems to give opposing parties access to each other's computer systems. The member said this went beyond what the current discovery rules allow for paper discovery.
A member responded that removing "test, or sample" will not stop a party from inspecting or examining an opponent's computer. The member said that having the ability to "test, or sample" could allow parties to avoid a full-scale search of an opponent's computers. The member said allowing parties to look at a sampled part of an opponent's electronically stored material is reasonable given that they are already allowed to look at all of it.
A member responded that an interpretation of the discovery rules that would allow a party full access to opponent's servers, and to information not even remotely related to the matter in controversy, would go too far.
A member said that testing and sampling is necessary so that parties can deal with the enormous amount of electronic information that parties naturally accumulate over time. The member said it would be impossible to look at all of a party's electronic files.
A member said that if the rule allows a party to personally get into an opponent's electronics records it should be amended--the member said parties should be able to control their own records and conduct any requested testing or sampling, rather than giving up their computers to the opponents technicians and experts.
A member responded that if a party is concerned about an opponent gaining access to material beyond the matter in controversy, a party could seek a protective order setting limits. A member responded that the rule should not allow an opponent to get into a party's computer system in the first place.
A member said that the rule did shift some burdens to the party trying to protect its
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own information. The member said, however, that the rule did not give parties access to material that was unrelated to the matter in controversy or unfettered access to an opponent's computers. The member said that the party seeking to protect its information certainly had a right to monitor the opposing party's access to its computers.
A member responded that a search or test that looked for keywords across a computer system could bring up documents not related to a particular case. The member said there was nothing in the rule that allows a party to screen the sample for non-related documents before producing it. The member said that, based on the sample request, a party could gain access to all sorts of proprietary information belonging to its opponent.
A member said that, as a practical matter, before a party can walk into an opponent's facility and look into a computer, there will be a hearing held and a protective order issued. The member said that parties can provide requested information without allowing direct access to computers, such as by sending copies.
A member said the party seeking to protect its own information is in a better position to state what sort of limits should be placed on discovery requests so it is appropriate to require this party to seek a protective order to establish the desired limits.
A member said the proposed amendment would limit testing and sampling on more than just electronic documents. The member said there might be cases where a party would want to test a writing to determine the authenticity of a signature, for example.
The motion to amend FAILED 3-9.
The main motion to approve the proposed amendments to Rules 33 and 34 and send to the Supreme Court as part of the Annual Rules Package CARRIED 11-1.
Staff explained that Fed.R.Civ.P. 37 had been amended to integrate material related to electronic discovery. Staff presented proposed amendments to N.D.R.Civ.P. 37 consistent with the federal amendments.
Judge Schneider MOVED to approve the proposed amendments. Judge Geiger seconded.
A member said that many parties who keep electronic records have an automatic
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dumping system that purges the records at given intervals. The member said that emails, in particular, are subject to deletion by dumping systems. The member said that, typically, companies involved in lawsuits do not change their dumping policies and continue deleting items like emails after litigation starts. The member said that, once a lawsuit starts, the rules should require that automatic document dumping by the parties stop.
The member said that the Rule 37 proposal would seemingly allow automatic document dumping to continue and would prohibit sanctions based on automatic destruction of evidence.
A member asked why the State of North Dakota is exempt from sanctions under the rule.
Mr. Kapsner MOVED to delete lines 101-107 on pages 362-363 of the proposed rule. Mr. Kuntz seconded.
A member said that if the motion carried, innocent parties who deleted electronic records would not be protected. A member said that companies who employ routine record retention policies should not be subject for sanctions for spoliation of evidence merely because they continue carrying out these policies. The member said the burden should be on the party who seeks evidence to obtain an order or agreement to have their opponents suspend their record dumping.
A member said that a business or company should be able to maintain an established record retention program and if another party wants to bring a lawsuit against the company that party needs to take steps to have the company modify its policy.
A member responded the main problem with the proposed language was that it prohibited the court from imposing sanctions for automatic record dumping rather than allowing the court to look at individual situations and weigh whether sanctions are appropriate. The member said the court should have discretion to impose sanctions depending on the circumstances.
A member said that the use of the terms "good faith" and "exceptional circumstances" in the proposed language gives the court discretion to sanction a party that dumps records in bad faith. An example of bad faith would be a change of retention procedures implemented after litigation begins. The member said that, under the proposed language, a court would have the authority to inquire into the reasons for such a change and decide whether sanctions are appropriate.
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A member said that, if the word "routine" on line 107 was deleted, it would be clear that "good faith" operation of an electronic records retention system is required before a party could escape sanctions for deleting potential evidence.
By unanimous consent, Mr. Kapsner's motion was changed to retain all language on lines 103-107 except for the word "routine" on line 107.
A member asked whether there was a statute that addressed the issue of whether expenses and fees could be awarded against the state. The member pointed out that the Committee could not change any statutes.
A member responded that, by deleting the language exempting the state from expenses and fees, the burden would shift to the legislature to impose specific statutory exemptions.
A member said that, without more information on why the Committee decided to exempt the state in the first place, the proposal to delete the exemption should be rejected. The member suggested that the motion be divided so the Committee could consider whether to modify the language related to records retention systems separately from the language related to the state exemption.
By unanimous consent, the question was divided and the Committee addressed the electronic records issue.
A member said the proposed language, which was based on the federal rule amendment, should be retained without amendment. The member said the word "routine" was important because a company engaged in routine operation of a system should be protected from discovery sanctions.
A member commented that companies' electronic records retention routines are already being upset by persons who have not even started lawsuits--the member said that, after every accident and incident, companies are receiving letters demanding that they preserve evidence.
A member responded that, because the proposal flatly disallows sanctions for loss of information due to routine operation, it would unacceptably reduce the court's discretion to evaluate a given situation where a party may have used an alleged routine to cover up for destruction of important material.
A member commented that if a party's conduct is egregious, the court would impose sanctions, regardless of whether the conduct was claimed to be "routine." The member said
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it was important to retain the word "routine" in order to maintain consistency with the federal rule.
The motion to delete the word "routine" FAILED 3-9.
The Committee next considered the question of whether language exempting the state from expenses and fees should be deleted.
A member said more research is needed on the rationale behind the provision. A member said the provision seemed to be a vestige of sovereign immunity. The member said that exempting the state from sanctions under the rule was inappropriate.
A member suggested that removing an exemption relating to the state should only be done after the state has had the opportunity to at least see the proposal. The member said staff should conduct research on the issue and the proposal should be considered again at a future meeting.
A member suggested that statutory provisions, especially in the Administrative Practices Act, may exempt the state from expenses and fees.
Judge Simonson MOVED that the motion to delete the exemption be postponed. Judge Geiger seconded.
A member suggested that the Committee should take action on the pending motion and the main motion before considering postponement.
Judge Simonson's motion was WITHDRAWN.
Mr. Kapsner's motion to amend FAILED 3-8.
The main motion to approve the proposed amendments to Rule 37 and send to the Supreme Court as part of the Annual Rules Package CARRIED 9-3.
Mr. Kapsner MOVED to bring back Rule 37 to the next meeting for consideration of whether to retain the state's exemption from sanctions. Judge Simonson seconded. Motion CARRIED unanimously.
RULE 45, N.D.R.Civ.P. - SUBPOENA (PAGES 373-401 OF THE AGENDA MATERIAL)
Staff explained that Fed.R.Civ.P. 45 had been amended to integrate material related
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to electronic discovery. Staff presented proposed amendments to N.D.R.Civ.P. 45 consistent with the federal amendments.
Mr. Quick MOVED to approve the proposed amendments. Mr. Mack seconded.
Mr. Kapsner MOVED to eliminate proposed new language on page 375, lines 15-16. Mr. Kuntz seconded.
A member said that the rule already requires that materials be produced as ordinarily maintained by the possessor. The member said this practice was practical and should continue. The member said allowing the requesting party to dictate the format for materials to be produced was improper and would lead to disputes.
By unanimous consent, a typographical error on line 16 was corrected.
A member pointed out the language that is the subject of the motion appears again later in the rule. The member also said that while there may be a risk that a requesting party may request material in an unusual format, if the language is deleted a producing party that desires to conceal requested information may also produce it in an unusual, potentially unreadable, format.
A member said that electronic material exists in many different formats and a requesting party should be allowed to ask for it in a preferred format.
A member observed that subpoenas are sent to third parties who are not involved in the lawsuit. The member said that parties should not be allowed to dictate the form of demanded material to a person not involved in the lawsuit.
A member said it was inappropriate to allow parties to request records to be produced in a form not normally used by possessor.
A member said there could be problems if producing in a requested format created a burden for the possessor; on the other hand, the member said it was legitimate for a party to request documents in a format that would be convenient for the requesting party to use when the possessor could produce documents in that format without undue burden.
A member said that when an unreasonable format request is made, the solution is to object and to force the requesting party to get a court order. The member said the rule already gives third parties a veto on requests.
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The motion to amend FAILED 5-8.
Mr. Kuntz MOVED to remove the words "testing or sampling" throughout the rule. Mr. Kapsner seconded.
A member said that the testing or sampling terminology could allow a party to a lawsuit to gain access to the computer systems of a third party.
The motion FAILED 2-10.
The main motion to approve the proposed amendments to Rule 45 and send to the Supreme Court as part of the Annual Rules Package CARRIED 11-1.
FOR THE GOOD OF THE ORDER
The Chair asked whether the Committee would support web posting of emailed comments to proposed rule amendments. The Chair said that the State of Arizona had found that this encouraged more comment on rule proposals.
Mr. Mack MOVED that the Committee recommend that the Supreme Court post emailed comments on proposed rule amendments. Mr. Kapsner seconded. Motion CARRIED unanimously.
The meeting adjourned at approximately 11:30 a.m. on September 29, 2006.
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Michael J. Hagburg