RULE 513. COLLABORATIVE LAW PRIVILEGE.
1 (a) Privilege Against Disclosure for Collaborative Law Communication;
2 Admissibility; Discovery.
3 (1) "Collaborative law communication" means a statement, whether oral
4 or in a record, or verbal or nonverbal, that:
5 (A) is made to conduct, participate in, continue, or reconvene a
6 collaborative law process; and
7 (B) occurs after the parties sign a collaborative law participation agreement
8 and before the collaborative law process is concluded.
9 (2) A collaborative law communication is privileged, not subject to
10 discovery, and not admissible in evidence.
11 (3) In a proceeding, the following privileges apply:
12 (A) A party may refuse to disclose, and may prevent any other person from
13 disclosing, a collaborative law communication.
14 (B) A nonparty participant may refuse to disclose, and may prevent any
15 other person from disclosing, a collaborative law communication of the nonparty
17 (4) Evidence or information that is otherwise admissible or subject to
18 discovery does not become inadmissible or protected from discovery solely
19 because of its disclosure or use in a collaborative law process.
20 (b) Waiver and Preclusion of Privilege.
21 (1) A privilege under Rule 513(a) may be waived in a record or orally
22 during a proceeding if it is expressly waived by all parties and, in the case of the
23 privilege of a nonparty participant, it is also expressly waived by the nonparty
25 (2) A person that makes a disclosure or representation about a collaborative
26 law communication which prejudices another person in a proceeding may not
27 assert a privilege under Rule 513(a), but this preclusion applies only to the extent
28 necessary for the person prejudiced to respond to the disclosure or representation.
29 (c) Limits of Privilege.
30 (1) There is no privilege under Rule 513 (a) for a collaborative law
31 communication that is:
32 (A) available to the public under an open records act or made during a
33 session of a collaborative law process that is open, or is required by law to be
34 open, to the public;
35 (B) a threat or statement of a plan to inflict bodily injury or commit a crime
36 of violence;
37 (C) intentionally used to plan a crime, commit or attempt to commit a crime,
38 or conceal an ongoing crime or ongoing criminal activity; or
39 (D) in an agreement resulting from the collaborative law process, evidenced
40 by a record signed by all parties to the agreement.
41 (2) The privileges under Rule 513(a) for a collaborative law communication
42 do not apply to the extent that a communication is:
43 (A) sought or offered to prove or disprove a claim or complaint of
44 professional misconduct or malpractice arising from or related to a collaborative
45 law process; or
46 (B) sought or offered to prove or disprove abuse, neglect, abandonment, or
47 exploitation of a child or adult, unless the child protective services agency or adult
48 protective services agency is a party to or otherwise participates in the process.
49 (3) There is no privilege under Rule 513(a) if a tribunal finds, after a
50 hearing in camera, that the party seeking discovery or the proponent of the
51 evidence has shown the evidence is not otherwise available, the need for the
52 evidence substantially outweighs the interest in protecting confidentiality, and the
53 collaborative law communication is sought or offered in:
54 (A) a court proceeding involving a crime; or
55 (B) a proceeding seeking rescission or reformation of a contract arising out
56 of the
57 collaborative law process or in which a defense to avoid liability on the contract is
59 (4) If a collaborative law communication is subject to an exception under
60 Rule 513(c)(2) or (3), only the part of the communication necessary for the
61 application of the exception may be disclosed or admitted.
62 (5) Disclosure or admission of evidence excepted from the privilege under
63 paragraph Rule 513(c)(2) or (3) does not make the evidence or any other
64 collaborative law communication discoverable or admissible for any other
66 (6) The privileges under Rule 513(a) do not apply if the parties agree in
67 advance in a signed record, or if a record of a proceeding reflects agreement by the
68 parties, that all or part of a collaborative law process is not privileged. This
69 paragraph does not apply to a collaborative law communication made by a person
70 that did not receive actual notice of the agreement before the communication was
72 EXPLANATORY NOTE
73 Rule 513 was adopted, effective_____________.
74 Sources: Joint Procedure Committee Minutes of September 25-26, 2014,
75 pages____; April 24-25, 2014, pages 4-10; April 25-26, 2013, pages 23-26.
76 Cross Reference: N.D.R.Ct . 8.10 (Collaborative Law).