TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 5, 2016
RE: Rule 26, N.D.R.Civ.P., General Provisions Governing Discovery
Proposed amendments to Rule 26 consistent with the December 1, 2015, amendments to Fed.R.Civ.P. 26 are attached.
The proposed amendments begin at line 13 with the addition of detailed proportionality considerations to the scope of discovery part of Rule 26 and the deletion of many of the previous scope factors. Under the proposal, the unique N.D. language defining "electronically stored information" would be removed from this paragraph and transferred to the electronic discovery paragraph that begins at line 47. Related to the proportionality amendments, there is language added at lines 147-148 allowing a protective order to include language on allocation of expenses.
As explained in the attached federal comments, the addition of new proportionality language is intended to restore an emphasis on proportionality when determining what is within the scope of discovery. The comments indicate that a proportionality component was added to the rule in 1983 but diluted by amendments in 1993 and 2000. The comments state: "The parties and the court have a collective responsibility to consider proportionality of all discovery and consider it in resolving discovery disputes."
A process to apply to have a shorter response time for Rule 34 requests is part of the federal Rule 26 amendments. This language is not included with the proposed changes to Rule 26 because applying for a shorter time would be done as part of the mandatory discovery conference, which is not part of the N.D. rule. Under N.D.R.Civ.P. 34, there is a 30 day deadline for responding to a request, but the defendant is allowed 45 days after service of the summons and complaint to respond. The committee may wish to discuss whether to include some version of the federal response time amendments in our rules.