TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 26, 2016
RE: Rule 26, N.D.R.Civ.P., General Provisions Governing Discovery
At the last meeting, the committee discussed proposed amendments to Rule 26 based on the December 2015 amendments to Fed.R.Civ.P. 26. The committee decided to indefinitely postpone consideration of those amendments.
At the meeting, the committee also discussed a letter from attorney Derrick Braaten that suggested changes to Rule 26 that would make it more consistent with the federal rule's provisions on discovery of material related to expert witnesses.
Proposed amendments to Rule 26 are attached.
In the version of Rule 26 discussed at the last meeting, language related to electronically stored information was moved from subparagraph (b)(1)(A) to subparagraph (b)(1)(B)(ii). In the discussion, some members expressed approval of this proposed change because it brought language related to electronically stored information together in one place. This proposed amendment is retained in the attached draft amendments to the rule.
Fed.R.Civ.P. 26(a)(2) requires automatic disclosure of specific information from experts expected to testify. North Dakota has not adopted the federal disclosure requirements and does not have an equivalent section. In order to provide more clarity about what information an expert must disclose, the draft amendments would insert a new subparagraph (b)(4)(A)(ii) that would allow attorneys to seek through discovery the same information that the federal rule requires experts to disclose automatically. New language in subparagraph (b)(4)(A)(ii) would allow a deposition to be conducted only after this information was requested and provided, consistent with the federal rule. Language in (b)(4)(A)(ii) that allows a party to object to an expert depositions, which is inconsistent with the federal rule, would be deleted under the proposal.
Fed.R.Civ.P. 26(b)(4) contains provisions protecting draft reports and trial preparation communications. These provisions were added to the federal rule in 2010 to provide more work product protection. Mr. Braaten specifically mentioned these provisions in his letter suggesting that Rule 26 be amended to conform more closely to the federal rule. Proposed amendments to Rule 26 would insert new subparagraphs (b)(4)(B) and (b)(4)(C) providing the same protections as the federal provisions. The committee discussed the then new federal provisions extensively at the April and September 2011 meetings and rejected them. Excerpts from these discussions are attached.