TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 5, 2016
RE: Rule 37, N.D.R.Civ.P., Failure to Make or Cooperate in Discovery; Sanctions
Proposed amendments to Rule 37 consistent with the December 1, 2015, amendments to Fed.R.Civ.P. 37 are attached.
A minor amendment is proposed at line 19 to reflect that copies of documents can be produced in response to a Rule 34 request.
Significant amendments are proposed to subdivision (f) beginning at line 118. The previous somewhat vague standard for imposing sanctions for failure to preserve electronic information would be replaced by more detailed standards on determining when to impose sanctions along with a list of sanctions that may be imposed. As explained in the attached federal comments, the amendment was necessary because of the growth of discovery of electronic information and the different standards that had been developed and applied in different parts of the country for discovery sanctions related to electronic information.
A proposed amendment to the explanatory note beginning at line 145 would explain that a change in standards had been made but it does not explain how to apply the standards. The federal comments are considerably more extensive and do contain a discussion of how to apply the new standards. The committee may wish to discuss whether the proposed amendments to the Rule 37 explanatory note should be expanded.