TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 16, 2016
RE: Rule 26, N.D.R.Civ.P., General Provisions Governing Discovery
The committee has discussed proposed amendments to Rule 26 at its last two meetings. These proposals included adopting amendments based on the December 2015 amendments to Fed.R.Civ.P. 26 and amendments that would have made Rule 26 more consistent with the federal rule on discovery of material related to expert witnesses. The committee ultimately approved limited amendments to the section of the rule related to electronically stored information. These proposed amendments are now before the Supreme Court.
During the committee's work on Rule 26, the federal requirements for initial disclosures were discussed. At the May meeting, several members suggested that the committee consider making initial disclosure requirements part of Rule 26. Staff has prepared proposed amendments that would add initial disclosure requirements (based upon those contained in the federal rule) to Rule 26.
In drafting this proposal, staff retained all the listed proceedings mentioned in the federal rule as exempt from initial disclosure. The committee may wish to examine these proceedings and decide whether any need to be deleted, or whether any others need to be added, consistent with practice in the state courts.
Staff arbitrarily chose "45 days after service of the summons and complaint" as the deadline for initial disclosures. In federal court, initial disclosures take place 14 days after the Fed.R.Civ.P. 26 (f) discovery conference, something North Dakota does not require. The 45 day limit is based on language in Rule 34 that allows a defendant 45 days after service of the summons and complaint before responding to a production request. The committee may wish to discuss whether some other time frame is more appropriate.
Language requiring disclosure of expert testimony is also included in the proposal along with proposed amendments to the "Trial Preparation Experts" part of the rule. Rule 26 is more generous than the federal rule in allowing payment of the opposing party's expert fees and expenses and this is not changed under the proposal.
If the committee decides to approve any or all of the proposed changes to Rule 26, the other discovery rules will need to be examined and possibly amended for consistency with the changes.
The proposed amendments to Rule 26 are attached.