MINUTES OF MEETING
Joint Procedure Committee
May 12-13, 2016
TABLE OF CONTENTS
Rule 43, N.D.R.Crim.P., Defendant's Presence 2
Rule 26, N.D.R.Civ.P., General Provisions Governing Discovery 10
Rule 37, N.D.R.Civ.P., Failure to Make or Cooperate in Discovery; Sanctions 15
Rule 3.5, N.D.R.Ct., Electronic Filing in District Courts 15
Rule 41, N.D. Sup. Ct. Admin. R., Access to Court Records 22
Rule 58, N.D. Sup. Ct. Admin. R., Vexatious Litigation 25
Rule 5, N.D.R.Crim.P., Initial Appearance Before the Magistrate; Rule 5.1, N.D.R.Crim.P.,Preliminary Examination; Rule 7, N.D.R.Crim.P., The Indictment and the Information; Rule9, N.D.R.Crim.P., Warrant or Summons Upon Indictment or Information 29
For the Good of the Order 29
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on May 12, 2016, by the Chair, Justice Dale Sandstrom.
Justice Dale Sandstrom, Chair
Honorable Todd L. Cresap
Honorable Laurie Fontaine
Honorable Steven L. Marquart
Honorable Steven McCullough
Honorable Thomas E. Merrick (Friday only)
Honorable David E. Reich
Honorable Robin Schmidt
Mr. Bradley Beehler
Mr. Sean Foss
Mr. Robert Hoy
Prof. Margaret Jackson
Ms. Carol Larson
Mr. Lonnie Olson
Mr. Kent Reierson
Mr. Robert Schultz
Mr. Lloyd Suhr
Honorable William A. Herauf
Honorable Jon Jensen
Mr. Zachary Pelham
The Chair introduced a new committee member, Mr. Robert Schultz.
APPROVAL OF MINUTES
Judge Reich MOVED to approve the minutes. Ms. Larson seconded. By unanimous consent, a typographical error on page 4 was corrected. The motion to approve the minutes CARRIED.
Rule 43, N.D.R.Crim.P., Defendant's Presence (PAGES 26-37 OF THE AGENDAMATERIALS)
Staff explained that, at the January meeting, the committee had approved proposed amendments to Rule 10 and Rule 43 to clarify that a represented defendant in a felony case may waive the arraignment in writing. Staff said the committee sent these proposals directly to the Court. The Court considered the proposals, made some changes to Rule 43 related to acknowledgment of rights, and has now referred this rule back to the committee for work on a proposed form for defendants who wish to waive the preliminary hearing and the arraignment. Staff provided the committee with a proposed new N.D.R.Crim.P. 18 and proposed amendments to existing N.D.R.Crim.P. 17.
Judge Marquart MOVED to approve the proposed amendments to Rule 43. Mr. Beehler seconded. Motion CARRIED.
A member said there is a distinction between felony offenses and misdemeanor offenses. The member said under the misdemeanor waiver language a defendant can enter
a guilty plea on paper and should be required to acknowledge in the document the rights listed in Rule 11. The member said under the felony waiver language, the defendant is not allowed to enter a guilty plea on paper and should not need to acknowledge a waiver of Rule 11 rights.
The motion to return the proposed amendments to Rule 43 to the Supreme Court CARRIED unanimously.
Mr. Hoy MOVED to approve the proposed amendments to N.D.R.Crim.P. Form 17. Mr. Beehler seconded.
A member said that the proposed new language on the possibility of deportation was related to a collateral consequence of a conviction. The member questioned whether collateral consequences should be included in the form. The member said if the deportation consequences were included on the form they should be placed with the rights waived when pleading guilty.
The Chair said the U.S. Supreme Court had created the requirement that defendants needed to be advised of the possible deportation consequences that go along with a guilty plea. A member said that in Cass County, defendants were informed of all their rights at the initial appearance, including collateral consequences, so it would not be necessary to repeat the rights in a form. A member replied that the form would be for defendants who make no appearance.
A member said that the case record would be fine if defendants were informed of their rights at the initial appearance. Members replied that sometimes defendants do not show at the initial appearance and that other counties might not inform defendants of their rights to the extent done in Cass County.
A member said that there are many collateral consequences that might apply in misdemeanor cases that are not listed in the form. The Chair pointed out that the U.S. Supreme Court had decided that defendants must be advised of the deportation collateral consequence. A member said there are other collateral consequences that impact constitutional rights, such as firearms restrictions that can be imposed in domestic violence cases. The member said courts usually advise about these collateral consequences. The Chair said creating a written record that a defendant was advised about deportation consequences will limit the issue from coming up on post conviction relief.
A member suggested that the proposed language discussing deportation consequences should be in a separate paragraph.
Judge Reich MOVED to move the deportation consequences language into a separate paragraph number 6 and to renumber the remainder of the rule accordingly. Judge Marquart seconded.
A member said it would be important to also revise any internal references to paragraph numbers to match the renumbered paragraphs. Staff said it looked like only one reference would need to be renumbered.
A member said that paragraphs 5(a) and 5(b) of the form seem to be derived from Rule 11(b), which deals with the advice the court must provide to a defendant when accepting a plea of guilty. The member said the form did not seem to cover restitution, which the court must advise about under Rule 11(b). The member said the form should probably include an advisement that the court may order restitution.
Judge McCullough moved to add a new paragraph 7 reading: "I understand that I may be ordered to pay restitution." Judge Marquart seconded. Motion CARRIED.
Mr. Hoy MOVED to delete language from the lawyer's signature block at the end of the form: "and that I personally observed the defendant date and sign the above petition." Mr. Suhr seconded.
A member said that a lawyer does not have to observe the defendant signing the petition because the document is notarized. The member said lawyers and defendants often sign these documents at separate times and in different places. The member said a lawyer might email the form to the client and explain the form in the email. The defendant would then sign the form, have it notarized and mail it back to the attorney.
Prof. Jackson moved to delete the "19__" language in the form's signature blocks and replace it with blank lines. Ms. Larson seconded. Motion CARRIED.
The motion to send the proposed amendments to Form 17 to the Supreme Court CARRIED unanimously.
Judge Marquart MOVED to approved proposed new N.D.R.Crim.P. Form 18. Judge Reich seconded.
Staff said Judge David Nelson had suggested by email that language be added to the form warning the defendant of the possible collateral consequence of deportation. Staff said Judge Nelson suggested this language be added to the part of the form where defendants were informed they could ask for a consular officer to be notified of their arrest, on page 34 of the materials.
A member said that in the judge's benchbook, the deportation warning was made after the advice about contacting a consular officer so it may be appropriate to put the two advisories together. A member said that the purpose of Form 18 was to enter a not guilty plea and it might not be necessary to advise of deportation consequences because this is something that is required only when a guilty plea is made. The Chair said if the committee desired to keep the language in Form 18 parallel to Form 17, the deportation consequence language would need to be placed later in the form. The Chair said it was important that defendants be advised of deportation consequences and that failing to advise had been the basis of many post conviction relief petitions in recent years.
Mr. Hoy MOVED to delete paragraphs 3-8 on page 33-34 of proposed Form 18. Ms. Jackson seconded.
A member said this form would only be used in a felony, in which case the defendant would already have received a complete explanation of rights at the initial appearance. The member said the preliminary hearing is a probable cause hearing and to waive this all the defendant should have to acknowledge is an understanding of the charge. The member said that the form is designed to allow the defendant to waive the preliminary hearing, arraignment and to enter a plea of not guilty so there is no need to explain all the rights a defendant who later pleads guilty might waive. The member said this is why it would be appropriate to delete the language in paragraphs 3-8.
The Chair asked whether there were any required advisements connected with the arraignment. A member said the defendant is provided with the complaint at the arraignment.
A member said the complete acknowledgment of rights should remain part of Form 18. The member said that sometimes defendants are not advised of all their rights at the initial appearance, they might get a shorter version. The member said if the defendant waives the preliminary hearing, they might not be advised of all their rights. The member said that even if defendants are advised of all their rights at the initial appearance, there is no harm having an acknowledgment of rights in Form 18 because this would create a written record they were advised of all their rights.
A member said it would be fine to include an acknowledgment of all the rights in the form. The member said that including a reference to Rule 11(b) in Rule 43(b)(1), however, is not necessary because Rule 11(b) refers to rights waived when a defendant pleads guilty and a defendant cannot plead guilty on paper under Rule 43(b)(1). A member said if there are counties in which defendants are not read all their rights at the initial appearance there is no harm keeping the list of rights in Form 18.
By unanimous consent, Mr. Hoy was allowed to withdraw his motion.
A member said that the language in paragraph 6 on page 34 on a defendant's right to notify a consular officer was not needed in Form 18 because advice of this right was required to be provided at the initial appearance. The member said the initial appearance would be done by the time a defendant requested to waive the preliminary hearing using Form 18.
Mr. Suhr MOVED to delete paragraph 6 on page 34. Mr. Hoy seconded.
A member said that at some initial appearances, the consular officer advice may not be provided. The member said there is no uniformity across the state as to the advice provided at the initial appearance. The Chair said if the advice was acknowledged in the form, this would correct any failure to provide the advice that may have taken place at the initial appearance. A member agreed it would be good to retain the language in the form to make up for any deficiencies at the initial appearance.
A member said that there is an express requirement in the rules that the consular office advice be provided at the initial appearance. The member said that having the advice in the form may give the impression that it is not important to provide the consular officer advice at the initial appearance.
The Chair asked whether there were any suggestions based on Judge Nelson's suggestion that the form contain advice related to deportation consequences. A member said that, because a guilty plea cannot be entered using this form, it is not necessary to include the deportation consequence advice. A member said it would be useful to add the advice to the form so that there would be a written acknowledgment on the record that the advice had been given.
Judge Schmidt MOVED to add deportation consequence language to the end of line 38 on page 34: "I understand that a person convicted of a crime who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to
the United States in the future." Mr. Olson seconded.
A member said one effect of adding this language to the form would be a reduction in requests for transcripts of initial appearances because the acknowledgment of rights related to non-citizens would be in writing.
A member asked whether additional language should be added to make it clear that the defendant could be denied citizenship specifically to the United States.
Ms. Larson MOVED to amend to add the words "United States" before the word "citizenship" in the new deportation warning language. Mr. Schultz seconded.
A member said including the additional proposed language would be a deviation from the text of Rule 11. The member said that the current language is an exact quote from the rule.
Motion FAILED 6-8.
A member said that the language beginning at line 12 on page 33 should be revised so that any mandatory minimum sentences in a case are clear. A member suggested that a new second sentence using language similar to the existing first sentence should be added specifically stating the applicable mandatory minimum sentences. The member said it was important for defendants to understand when the charges against them had mandatory minimums.
By unanimous consent, the term "days" was replaced with "years" at lines 13-14 on pages 33-34.
Judge Fontaine MOVED to amend lines 13-16 on pages 33-34 to add a second sentence as follows: "I understand the mandatory minimum sentence for the offense with which I am charged is imprisonment of ______ and a fine of ______." Judge McCullough seconded.
A member asked whether administrative fees should be added to the form. A member replied that mandatory fees were not part of the statutory penalty. A member said judges have discretion to waive the fees so fees are not mandatory. The Chair asked whether there was a mandatory minimum that required a person to be imprisoned and pay a fine. Members responded that DUI cases require imprisonment and fines. A member said that most other
crimes have only a mandatory prison sentence.
Judge McCullough MOVED to make the first sentence of paragraph 3 consistent with the new second sentence as follows: "I understand the maximum possible sentence for the offense with which I am charged is imprisonment of_____ and a fine of ___." Prof. Jackson seconded. Motion CARRIED.
A member said courts are currently giving a firearms advisory: if defendants plead guilty to certain offenses, they will be precluded from using or possessing firearms or ammunition. A member said those are collateral consequences but they do not have the same impact on constitutional rights as the citizenship and deportation consequences. The Chair said courts can advise of collateral consequences but they should not give the impression they are advising of all possible collateral consequences.
Mr. Hoy MOVED to amend lines 88-90 on page 36 to remove the requirement that the attorney personally witness the defendant's signing and dating of the petition. Mr. Suhr seconded.
A member said that attorneys frequently work remotely with their clients in putting together these petitions and it is not practical for them to observe the defendant signing the petitions. The member said the notary will fulfill the requirement to observe the signing.
Mr. Hoy MOVED to insert text at line 66 on page 35 after the "the" as follows: "preliminary hearing be waived and the." Judge Marquart seconded. Motion CARRIED.
The Chair said he noticed that both the terms "preliminary hearing" and "preliminary examination" were used within the form. Staff said Rule 5.1 was titled "Preliminary Examination" so changing the term to "examination" throughout the form would make it consistent with the rule. The Chair suggested it may be better to change "examination" to "hearing" throughout the form and the rules because it was the widely used common term. Staff said parts of Rule 5.1 use the term "examination" while other parts use the term "hearing." Members of the committee said "preliminary hearing" was the commonly used term.
By unanimous consent, the word "examination" was changed to "hearing" at line 65 on page 35.
A member asked why the form stated that "the Court" would enter a plea of not guilty for the defendant. The member asked why the defendant would not be the person entering the plea. The member said the court generally only enters a plea on behalf of the defendant when the defendant refuses to enter a plea. A member said it is the judge that has the authority and discretion to allow the waivers requested in the form and it is appropriate to characterize any plea entered in the defendant's absence as entered by the court. The Chair said the court may decide to have the defendant show up instead of allowing a waiver.
A member said that in Cass County, the defendant may be allowed to waive presence at the preliminary hearing and arraignment, but the attorney is required to show up in court with the waiver form. A member said this is not the procedure followed everywhere in the state and the real advantage of having the rule change and the form is that neither the client nor the lawyers need to show up in person, which saves the client money and the lawyer time that may have been spent in a long drive across the state. A member said it also clears the court's schedule to allow everything to be done on paper rather than requiring lawyers to appear in court to turn in documents. A member said the rule allows the court discretion to accept or reject a written waiver.
A member said it is good to have the attorney turn in the waiver form in person because if there are unanticipated problems, the lawyer can work with the court to resolve them. A member said the solution in such a case is to deny the written waiver in the case. Members said that the court has discretion to handle waiver requests in whatever way it prefers.
Judge Reich MOVED to add "and arraignment in open court" to the new language at line 66 on page 35. Judge Cresap seconded. Motion CARRIED.
The motion to send the proposed new Form 18 to the Supreme Court CARRIED.
Judge Fontaine MOVED to further amend Form 17 to bring it into conformity with the amendments to Form 18. Judge Marquart seconded.
Mr. Schulz MOVED to amend the motion to remove the "misdemeanor" from the first sentence paragraph 5 of Form 17. Mr. Beehler seconded. Motion CARRIED.
A member suggested that an additional blank be added to the end of paragraph 5 so that any mandatory offense-dependent conditions (such as alcohol monitoring) could be added to the mandatory minimum advisement. A member said that the parties would likely be preparing the form and would need to add in any mandatory minimums that might apply.
By unanimous consent, "and the following requirements:" was added to the mandatory minimums section of paragraph 5.
The motion to further amend Form 17 CARRIED.
Judge McCullough MOVED to further amend Rule 43 at line 25 on page 28 to delete "and 11(b)." Mr. Schulz seconded.
A member said that the motion addresses the fact that a felony defendant will not be allowed to submit a guilty plea on paper--a felony defendant may only waive presence to enter a not guilty plea. The member said that, because the felony defendant cannot enter a guilty plea on paper, Rule 11 advisements that apply only to guilty plea proceedings are not necessary before allowing a waiver of presence to enter a not guilty plea. The member said Form 18 would need to be reworked if all the Rule 11 advisements were required before allowing a waiver to enter a not guilty plea.
The motion to further amend Rule 43 CARRIED.
Staff was instructed to prepare amendments to N.D.R.Crim.P. 5, 5.1, 7 and 9 for consideration by the committee at the Friday session, replacing the term "preliminary examination" in these rules with "preliminary hearing."
RULE 26, N.D.R.Civ.P., GENERAL PROVISIONS GOVERNING DISCOVERY(PAGES 38-81 OF THE AGENDA MATERIAL)
Staff said that proposed amendments to Rule 26 had been prepared based on suggestions submitted in a letter from attorney Derrick Braaten that the committee reviewed at the January meeting. Mr. Braaten recommended that Rule 26 be amended to make it more consistent with the federal rule's provisions on discovery of material related to expert witnesses. Staff said that the proposed amendments also consolidated language in the rule related to electronically stored information in subparagraph (b)(1)(B)(ii).
Judge Marquart MOVED to approve the proposed amendments to Rule 26. Prof. Jackson seconded.
The Chair suggested the committee begin by looking at the changes related to consolidating the rule text on electronically stored information. There were no objections to these proposed changes.
The committee then addressed the proposed amendment that would allow attorneys to obtain a report from an expert witness expected to testify at trial. Staff said the proposed amendment was adapted from the federal rule language.
A member said that the proposal would allow a party to require an expert witness to produce a report. Staff said experts are required to prepare reports in federal cases and this would extend the requirement to state cases. Staff said an alternative would be to require disclosure through interrogatories or other means of the material the expert would otherwise include in a report. A member said if the information is sought through interrogatories, there is a limit on the number allowed. A member said that a report could be requested under Rule 34, which requires production of documents. A member said that not all experts prepare reports and the proposal would require them now to do so at the opposing party's behest. A member said this would not really be a request for production but a request for creation.
A member asked why Rule 26's language was different from the federal rule. Staff explained that North Dakota has not adopted the part of Fed.R.Civ.P. 26 that requires preliminary disclosures so Rule 26 does not have an expert disclosure requirement. A member said the federal rule requires an expert report containing the items listed in the proposed new language. A member said if the proposed language were adopted, an expert report would likely be requested in every case that involved an expert. The member said, therefore, that the committee should consider whether to make preparation of an expert report mandatory as in the federal rule.
Mr. Reierson MOVED to amend at lines 96-97 on page 44, replacing the language after "a party may" with "utilize discovery to obtain."
A member said the proposed change would allow a party to use discovery methods to obtain detailed information about an expert's opinion without requiring preparation of an expert report. A member said the effort involved on the part of the expert would be the same as would be expended if a report was required because the same detailed information would need to be produced.
Motion FAILED for lack of a second.
Judge McCullough MOVED to delete the proposed new language at lines 94-107 on pages 44-45. Judge Marquart seconded.
Staff said the proposed amendment had been prepared in response to Mr. Braaten's letter and draft brief, which asked for more details in the rule about the kind of information that could be obtained from an expert. A member said detailed information can be obtained
from experts under the existing rule if a deposition of the expert is taken. A member said if a report could be obtained, as is the practice under the federal rules, a deposition would not always be needed. A member said detailed information about an expert's opinions is difficult to obtain through interrogatories because these must be directed to a party.
A member asked why North Dakota had not followed the federal rule on requiring disclosures. Staff said the committee had consistently opposed proposals to amend Rule 26 to add a preliminary disclosure requirement. A member said that if the committee was considering requiring disclosures from experts it should also incorporate the other federal disclosure requirements into the rule. The member said this would allow courts and attorneys to seek guidance from federal cases that had interpreted the rule.
Motion CARRIED 11-2.
A member asked why the proposal would delete existing language related to overly burdensome discovery from lines 109-110 on page 45. Staff said deletion was proposed because the federal rule no longer includes the language.
Judge McCullough MOVED to delete the proposed new language at lines 110-125 on pages 45-46. Mr. Beehler seconded.
A member said that the language that would be deleted under the motion seems to relate to experts who would make reports. A member said it is preferable that communications between an expert and an attorney not have any special protections and that the opposing party should be able to inquire into these communications through cross-examination.
A member said the conflict between the federal rule, under which expert/attorney communications are not discoverable and the state rule, where they are, can create complications for lawyers. The member said some protection for communication is appropriate because lawyers discuss legal theories and other confidential matters with experts. The member said that an expert is hired by a party and the only truly independent expert is a master hired by the court.
Motion CARRIED 11-2.
By unanimous consent, all references to the now deleted proposed materials will revert back to existing text.
Mr. Hoy MOVED to restore struck through language at lines 109-110 on page 45.
Judge McCullough seconded.
A member said that without the specific language allowing a court to consider whether a deposition would be "unnecessary, overly burdensome, or unfairly oppressive," the court might feel bound to allow the deposition to proceed. The member said in the proper case it might be necessary to stop a deposition based on these grounds. A member said it is not necessary to have this specific language in the expert witness section of the rule because the rule's general limitations on frequency and extent would cover expert depositions that might be overly burdensome.
Motion CARRIED 9-4.
Mr. Foss MOVED to delete lines 91-93 on page 44 and replace with language from lines 98-101. Ms. Jackson seconded.
A member said the purpose of the motion was to increase the amount of information that could be obtained about an expert's opinion through interrogatories. The member said the negative aspect of allowing collection of this information through interrogatories is that some of the limited number of interrogatories available to a party would be expended.
A member said the proposed language, except for the portion requiring identification of exhibits, would not add anything to the existing language of the rule. A member said it would be better to break up the proposed new sentence listing all the things that could be obtained from an expert into bullet points.
A member said that the new language is intended to specifically list what information must be provided about the expert's opinions. A member said that the proposed language is too specific and may lead to needless disputes at trial about whether disclosure was adequate. The member said that the existing language is better because it requires parties to provide the essential substance of the expert's opinion.
A member said that it is a problem when only the "substance" of the expert's opinion is disclosed and later during testimony it turns out the expert has all sorts of opinions that were not disclosed. The member said, however, it would be difficult to disclose in writing all the facts and data the expert is relying on because these are so numerous. The member said most of the time a deposition is required to identify all the facts and data. The member also said that a continuing obligation to identify all facts and data is a burden because things tend to develop in the interim between expert disclosure and trial.
A member said that requiring identification of exhibits is impractical because these
are generally generated by the attorney, not the expert, and they are developed and disclosed as trial approaches. A member said the rule language refers to exhibits the expert would use to support an opinion so these should be available once the expert develops the opinion.
A member said that lay experts, like the mechanic at the local garage, would likely not be able to identify the facts and data that would be required by the proposed amendment and so this information would not be disclosed. The member said such non-disclosure may lead to discovery disputes and possible exclusion of useful testimony. The member said it would be difficult in many cases to disclose all the details that would be required under the proposed amendment. The member said the appropriate way to develop the details that underlay an expert opinion is to take a deposition.
A member said it would be good to get more information and it would be good to get all the information that the federal rules require to be disclosed. The member said the way to do this would be to adopt all the federal disclosure requirements rather than bits and pieces.
A member said there seemed to be a sentiment among some members of the committee to consider adopting disclosure requirements like those in the federal rule. The member said it would be a way to save time and money because parties and lawyers would just know that they needed to turn over certain information in every case. The member said having to prepare an expert report does place a certain burden on the plaintiff, but the other initial disclosures provide important information without an excess burden. A member said that this would be a substantial change and the bar should be given the opportunity to comment. The Chair said that the committee distributes its agenda via the internet each meeting, which provides notice to anyone interested in the committee's work on rule changes. The Chair said the North Dakota rules in general follow the federal rules and the issue of whether to adopt the federal initial disclosure requirements would be a good topic to discuss at the next meeting.
Judge McCullough moved to delete lines 310-316 on pages 54 and 55 to conform the language of the explanatory note with the committee's actions on the rule text. Judge Marquart seconded. Motion CARRIED.
The main motion to send the proposed amendments to Rule 26 to the Supreme Court as part of the annual rules package CARRIED.
RULE 37, N.D.R.Civ.P., FAILURE TO MAKE OR COOPERATE IN DISCOVERY;SANCTIONS (PAGES 82-109 OF THE AGENDA MATERIAL)
Staff reviewed the committee's actions at the January meeting on proposed amendments to Rule 37 based on the 2015 amendments to the federal rule. Staff said the committee decided to postpone consideration of the amendments because they represented a substantial change in practice. After the January meeting, staff conducted additional research and worked with SBAND to get comments from attorneys on the proposed amendments. Staff presented the committee with the comments and modified proposed amendments to Rule 37.
The Chair said that the pending question was whether to adopt the proposed amendments to Rule 37 that were on the floor when consideration of the rule was postponed, which were at lines 118-137 on pages 89-90.
A member said that adopting a rule change that required a 2,500 word explanation in the federal rule book was a concern. A member said the committee had a good discussion of the proposed amendments at the last meeting and could not come to a conclusion. The member said the comments from the bar were limited and contradictory and did not provide the committee with a mandate to do anything. The member suggested that the proposal could be referred back to the bar for discussion at the convention to see if anyone cared about the proposal.
A member said much of the electronic material that would need to be preserved in anticipation of litigation under the proposed change is surveillance video. The member said that anything that might happen in a store or business might be material that has to be preserved in anticipation of litigation. The member said it is an undue burden on business owners to require them to maintain surveillance videos for upwards of six years. The member said if the owner chooses not to preserve everything and then becomes involved in litigation, the burden will be on them to prove it was not destroyed maliciously. The member said it is too harsh a rule.
The main motion to send the proposed amendments to Rule 37 to the Supreme Court as part of the annual rules package FAILED.
RULE 3.5, N.D.R.Ct., ELECTRONIC FILING IN DISTRICT COURTS (PAGES 110-123 OF THE AGENDA MATERIAL)
Staff explained that the State Court Administrator had proposed an amendment to Rule 3.5 to make it clear that the presence of a document within the court's electronic filing
system is by itself enough to establish the document's authenticity as a court record and that no further stamping, certifying or application of a seal is required. Staff said the purpose of the amendment was to allow electronic transfers of court documents between different courts in the state without the need for certification before transmittal.
Judge Larson MOVED to approve the proposed amendments to Rule 3.5. Judge Marquart seconded.
A member asked whether the clerks could electronically stamp or seal documents output from the Odyssey system. Staff said that the IT department had indicated this was technically possible but administrative steps to develop an electronic clerk stamp system had not yet been taken.
A member said the term "authentic" was an evidentiary term of art and under the proposed amendment, it appeared any party could file anything into the Odyssey system and that item would then be self-authenticated. The Chair said that the intent of the proposal was that documents could move from one court to another within the system without the need for intermediate certification that the document was the document in the court record.
Judge McCullough moved to amend line 82 on page 115 to insert "as a court record" after the word "authentic" and on line 83 on page 116 to insert "as a court record" after the word "authenticity." Mr. Foss seconded.
A member said that one of the statutes that requires a seal is the one on execution. The member asked whether, if the rule is amended, the sheriff's office will have to accept executions without seals. Staff said the intent was to allow documents to move within the system without further certification, but if a document goes out of the system, it would then need to be certified or otherwise authenticated. Staff said that currently, some courts within the state were refusing to accept documents from other courts without the document being certified.
A member said this sounded like a training issue for the clerks. A member responded that the clerks were simply enforcing statutory requirements as written and a rule amendment was required so the clerks would have guidance about accepting documents transferred through the Odyssey system. A member said if the technology exists to allow clerks to certify documents using electronic means, this should be adopted because it could be used to authenticate documents both within the system and documents output from the system.
A member said that since the time Odyssey was implemented, court administration has been working to get rid of clerk stamps and seals. The member said some clerks are uncomfortable with this and do print out, stamp, and re-scan documents that they feel need to be certified. A member said it is appropriate to have a rule allowing court documents to be sent from one court to another in North Dakota without the need for certification of the documents as authentic court records.
A member asked whether the rule proposal should be tabled and more input sought from court administration about what they need to have in the rule. A member said what court administration wants seems fairly simple--being able to send documents from court to court without intermediate certification. A member replied that the language of the proposal seemed too broad and seemed to authorize distribution without certification beyond the courts. A member said use of the term "authenticity" especially could create problems.
A member asked if putting language in the explanatory note indicating that the proposed amendment was not intended to have any impact on the admissibility of evidence would address the objections that had been raised to the use of the term "authenticity" in the rule.
Judge McCullough MOVED to postpone consideration of the proposal pending further input from court administration. Mr. Schultz seconded. Motion CARRIED.
Staff was instructed to arrange to have a representative from court administration appear via telephone at the Friday session.
May 13, 2016 - Friday
The meeting was called to order at approximately 9:00 a.m., by Justice Dale Sandstrom, Chair.
RULE 3.5, N.D.R.Ct., ELECTRONIC FILING IN DISTRICT COURTS (PAGES110-123 OF THE AGENDA MATERIAL)
State Court Administrator Sally Holewa and Deputy State Court Administrator Scott Johnson joined the meeting by telephone to answer questions about proposed amendments to Rule 3.5.
The Chair asked what court administration was seeking in requesting the proposed amendments. Mr. Johnson said that the rule change was sought to add simplicity and clarity to the movement of documents from court to court through the Odyssey system. Mr. Johnson
said different courts in different parts of the state had different standards regarding the need for certification of documents transferred electronically through the system. Mr. Johnson said with the advent of the electronic court records system, the authenticity of documents within the system appears to be clear. Mr. Johnson said the proposed rule amendment would clarify that these documents can be transferred electronically through the system without the clerks doing extra work to certify them along the way.
Staff explained that the committee had added language to the proposal to state that a document filed within Odyssey would be considered authentic "as a court record." Staff said this change was intended to clarify that a document filed in Odyssey would not be self-authenticating for all purposes. The Chair explained, for example, that a will filed in Odyssey could still be challenged if there was evidence it was not the dead person's will--the proposed change would not automatically make the will "authentic."
Ms. Holewa said the state courts had been a unified system for many years, long before Odyssey, but that as far as transferring documents within the system, in many cases counties were still treating other counties as if they were a foreign court. Ms. Holewa said the proposed amendment was an attempt to eliminate this and recognize the unity of the court system. Ms. Holewa said state court administration recognized that there were many reasons court records might need to be certified, but not for transfer from one clerk's office to another within the unified court system.
A member asked whether the proposed amendments were intended to apply to government agencies outside the court system that might receive documents through Odyssey, such as a sheriff's department. Ms. Holewa said the proposal at present is intended to apply to court-to-court transfers. Ms. Holewa said eventually, the courts hoped to directly transfer documents to the Criminal Justice Information Sharing System, which is used by law enforcement. Ms. Holewa said that this is not happening yet, but in the future court administration may seek authority to make direct transfers CJISS without certification.
A member asked whether the purpose of the proposed change was to allow a clerk anywhere in the state to rely on the authenticity of records within the system regardless of what county they were from. Mr. Johnson said yes. The member asked whether there was a simpler way to express this in the rule. Mr. Johnson said that the rule should make it as clear as possible that records being moved from court to court within the system do not need to be certified. Ms. Holewa said the proposed amendment was also intended to make it clear to lawyers that documents within the system were legitimate court records.
A member said that the Odyssey system was capable of allowing clerks to attach images, such as clerk stamps, to documents. The member asked when clerks would be able
to apply electronic stamps or certificates to documents. Mr. Johnson said this question would be best directed to the court's IT staff.
A member asked whether the problem of clerks refusing to accept documents sent through Odyssey by other clerks without certification was a statewide problem or one concentrated in a particular area. Mr. Johnson said the problem was statewide. A member asked how much the problem came up. Mr. Johnson said it was fairly frequent and had been brought to the attention of state court administration at least 6 times in the past 6 months.
The Rule 3.5 proposal was taken off the table for continued consideration by the committee.
A member said that the proposed rule language would be clearer if it specifically referred to document transfers from one court to another in the state. A member said rather than adding language, the sentence at lines 82-83 on pages 115-116 could be removed to clarify the proposal. A member said that the sentence could be deleted and language could be added to the first sentence of the proposed amendment to limit the applicability of the authenticity provision to documents transferred within the North Dakota court system.
A member said that limiting the proposal to documents transferred from court to court was important because people outside the court system, such as attorneys and law enforcement, also obtain documents from Odyssey and there is no intent to apply the authenticity provision to them. A member said that it would not be desirable to have attorneys be able to print out documents from the Odyssey system and claim them to be self-authenticated documents.
Judge Fontaine MOVED to amend to replace the language at lines 80-86 on page 115-116 with the following: "If a document that has been filed, accepted and docketed in the Odyssey electronic filing system is transferred from one court to another in the state through the Odyssey system it is considered authentic as a court document. No further proof of authenticity as a court record such as a stamp or physical seal is required." Judge Cresap seconded.
By unanimous consent, the term "court record" was substituted for "court document" in the motion language.
A member said the only substantive change between the motion language and the original proposed language was the addition of a reference to transfers between one court and another. The member said the effect of this change would be that if a document was not transferred from one court to another but was transferred from one file to another at the same
court it would not be "considered authentic as a court document."
A member said if the purpose of the proposed change is to allow clerks of court in the state to rely on Odyssey documents as true and correct copies that is what the rule should say. The member said if the rule was written to allow clerks to rely on all documents in the system as true and correct copies, documents would not need to be certified. A member said this could be accomplished by modifying the motion language to read: "If a document has been filed, accepted and docketed in the Odyssey electronic filing system it is considered authentic as a court document." A member said that this was what the original proposal said.
A member said the original proposal's intent was to have documents filed in Odyssey considered authentic as court records and to allow them to be transferred from court to court without certification. The member said the motion would limit application of the authenticity provision to records that were being transferred which would not satisfy the proposal's intent.
A member asked whether the phrase "distributed using the Odyssey system" on lines 85-86 on page 116 applied to all transfers including to non-court entities. A member said that some sheriff's offices and other agencies could obtain documents using the Odyssey system. A member asked whether "utilized within the court system" would be a better phrase.
Judge McCullough MOVED to delete the sentence beginning at line 82 on page 115. Mr. Hoy seconded.
A member said the sentence was superfluous and redundant.
Mr. Hoy MOVED to amend at lines 85-86 on page 116 to delete the phrase beginning with the words "when the document" and replace it with the phrase "when the record is used within the North Dakota court system." Judge McCullough seconded.
A member asked whether, under the motion language, a lawyer could print out a document from Odyssey and claim that the document is self-authenticated. A member suggested the motion language was too broad and provided much more than the clerks had been requesting. A member said that lawyers had been using N.D.R.Ev. 1001, which says that printouts from electronic databases are to be treated like "originals" for a long time.
The motion FAILED.
Judge Fontaine MOVED to add language at line 82 on page 115 at the end of the sentence: "within the North Dakota court system as between all files and all clerks of court." Mr. Reierson seconded.
A member asked whether the problem that originally led to the proposal is big enough to justify all the attention and time the committee has given it. The member said court administration had cited only 6 problem cases in the last 6-8 months, all involving documents that would have required certification or a seal under statute. The member said the proposed amendment likely will not be needed once the clerks and IT develop an electronic clerk stamp in Odyssey.
Motion FAILED 6-10.
Mr. Foss MOVED to amend at line 85 on page 116 to add "between courts" after "distributed." Mr. Reierson seconded.
A member said that court administration had presented the proposed changes twice to the committee and while this may not seem like a big issue to the committee, it is important to the clerks and a relatively simple fix.
By unanimous consent the words "or case files" were added to the end of the motion language.
Judge Reich MOVED to change the two occurrences of the word "document" in the sentence beginning at line 83 on page 116 to "record." Judge Merrick seconded.
A member asked whether the proposal was intended to eliminate all requirements that documents be certified or have a seal affixed. A member said the intent was that certification or a seal is not required when a document is moved within the Odyssey system by or between clerks. A member said the first sentence of the proposal states that once a document gets filed in the court system, our courts agree that it is an authentic court record. The member said that the second sentence says that certification is not required to affirm that authenticity when the record is moved between files and between courts in the system. The member said this seemed to be what court administration wanted.
The main motion to send the proposed amendments to Rule 3.5 to the Supreme Court as part of the annual rules package CARRIED 12-4.
Staff was instructed to rewrite the explanatory note to make it clear that the amendments apply only to the movement of documents within the court system and do not change the Rules of Evidence.
RULE 41, N.D. Sup. Ct. Admin. R., ACCESS TO COURT RECORDS (PAGES 124-162 OF THE AGENDA MATERIAL)
Staff said the committee was taking up Rule 41 again based on a suggestion from Mr. Hoy, who requested that the committee consider amendments to provide additional protection for the records of people who have been arrested but never convicted of a crime. Staff presented proposed amendments based on Minnesota's approach, which limits access to pre-conviction records posted online by limiting name searches of these records. Staff said Court Administrator Sally Holewa had also requested an amendment to the rule stating that use of secure public access to court records was limited to attorneys.
During the committee's telephone conversation with Ms. Holewa and Mr. Johnson, the Chair asked about Ms. Holewa's proposed amendment to Rule 41. The Chair asked Ms. Holewa whether all the documents available to licensed attorneys via secure public access were also available to the public at courthouse terminals. Ms. Holewa said there was no rule or policy in writing covering what was available at the courthouse terminals. She said the proposal was not intended to limit what was available at the courthouse but to clarify who was eligible for secure public access.
Judge Schmidt MOVED to approve the proposed amendments to Rule 41. Mr. Beehler seconded.
Mr. Hoy MOVED to add Ms. Holewa's proposed amendment after line 115 on page 131. Mr. Suhr seconded.
The Chair explained that the change proposed by Ms. Holewa related only to remote access to court records not to public access via terminals at courthouses. The Chair said the news media has in the past sought the type of remote access currently available to attorneys.
Speaking to the proposed change relating to limiting access to pre-conviction records, a member said that people who are charged with crimes but never convicted do face
problems obtaining employment and housing. The member said that restricting remote access to the records of people who are not convicted, rather then eliminating or sealing their records, seems a good compromise. The member said that people who take the time to go to the courthouse to look at the full record in a case are not the ones causing problems for people who are charged but not convicted, it is the ones who take a cursory glance at the records available by remote access.
The Chair asked whether there was an intent to limit access to online court calendars. Staff said Minnesota dealt with this issue by changing court calendars to images so they could not be searched for names.
A member asked whether there was an intent to limit name searching of criminal records at all points in the process or only after the case had been closed. A member said the original intent was to limit access to closed matters where no conviction resulted. Members said that currently, records in ongoing criminal matters could be named searched. The Chair said the proposal as currently written would bar access to the records in ongoing matters.
A member said that, based on the committee's recommendations, the Supreme Court had approved changes to the rule allowing people who had criminal charges dismissed or who had been acquitted to request that public access to their records be restricted. The member said the committee had also developed a form that made it easier for people to submit such requests to the court. The member questioned the need for the proposed amendments.
By unanimous consent, the word "closed" was added before "criminal" at line 166 on page 131.
A member asked whether the term "secure public access system" was defined anywhere in the rules. The member said "public access" is defined and allows the public to gain access to court records. The member said "secure public access" did not seem to have anything to do with the "public access." The member said there was a need for a comprehensive overview of Rule 41 to deal with issues related to the rule being written before court records went electronic.
The member said there were three ways for members of the public to get access to court records: going to the courthouse and asking the clerk, going to the public access terminal at any courthouse to access statewide records, or using the internet to access the less complete records available there. The member said a particular shortcoming of the rule was that there is no provision covering courthouse terminal access, which is the most comprehensive form of access available to the public.
The Chair said the term "secure public access" was used internally in the court system and by the IT department. The Chair said that it was not "public access" because it was limited to a certain group. The Chair said there is a need to define the term because no one who is not a court system insider would know what it means.
A member said it would be good if the committee could move ahead with the proposed changes to the rule. The member admitted that the rule needed additional work that could be done in the future.
A member said that the previous amendments to the rule had allowed people to request that records in criminal cases where there had been dismissals or acquittals to petition to restrict remote access to these records. The member said the current proposal would essentially automatically restrict remote access to these records. The member said that in the case of deferred imposition of sentence, there is a reason behind having a set period before a judgment of not guilty is entered. The member said if a person did not comply with the court's order in a deferred imposition, the guilty plea would remain. The member said automatically restricting access to records is not a good approach when the rule already gives parties the ability to petition the court to restrict remote access.
A member said when the committee recommended the previous amendments to the rule, the committee had made a broad proposal to restrict access to records of people who had been charged with but not convicted of crimes. The member said the amendments the Supreme Court adopted were much narrower than the ones the committee proposed. The member said the new proposed language is broad in scope like the previous proposal the Court rejected.
A member said the intent of the current proposals is to take care of the people who have not been convicted of anything. The member said a deferred imposition was not covered by the proposal unless the case is dismissed. The member said most deferred impositions were not dismissed but were contingent on compliance by the defendant. The member said any dismissal in a deferred imposition case would not occur until the end of the contingent period with the agreement of the court and the prosecutor. The member said the current proposal would not apply to a deferred imposition during the period when the charges are still pending.
A member said that a deferred imposition case is administratively closed once the order of deferral is entered. A member replied that a defendant would not consider such a case closed until the end of the contingent period.
The Chair asked whether any more work needed to be done on the rule. Staff said the
explanatory note needed to be amended to reflect the addition of Ms. Holewa's proposal. A member asked whether the proposed language stating that attorneys may access court records by "secure public access" meant that only attorneys could use this method. The Chair said that was the current practice. A member said that attorney staff use secure public access, but under the attorney's log on credentials.
The main motion to send the proposed amendments to Rule 41 to the Supreme Court as part of the annual rules package CARRIED 12-4.
RULE 58, N.D. Sup. Ct. Admin. R., VEXATIOUS LITIGATION (PAGES 163-197 OF THE AGENDA MATERIAL)
Staff explained that the Supreme Court requested the committee consider a new rule to address vexatious litigants. Staff said the Court indicated that the rule is necessary to deal with litigants who consume the state's judicial resources by filing non-meritorious litigation, burdening both the court system and opposing parties. Staff presented a proposed new rule based on the Idaho vexatious litigant rule.
The Chair said there are existing orders out on litigants who keep filing over and over again, usually related to long resolved matters. A member asked whether a person who had an order against them in one county to go ahead and file in another county. The Chair said in the Odyssey system there would be a flag against the person's name to alert staff when there is an attempted filing. The Chair said vexatious litigation consumes a huge amount of judicial resources and has become a big problem.
Mr. Beehler MOVED to approve proposed new Rule 58. Judge Schmidt seconded.
A member asked why the Idaho rule was chosen as a model. Staff said Idaho was closest to North Dakota in size and structure of the court system. Staff said the Idaho rule also had all the key components that the vexatious litigant rules in other states had.
A member asked why, under the proposal, presiding judges would be the ones entering orders against vexatious litigants rather than any judge. The member also wanted to know whether the rule should also apply to citizens who might bring criminal complaints. Staff said that most states have some sort of disinterested third party making the decision on the pre-filing order and that the proposal followed the Idaho approach of having the supervising judge make the decision.
A member said that there is currently no set procedure in place to deal with vexatious litigants. The member said that in one case, the judge had worked with court administration
to formulate a standing order and an administrative flag in Odyssey to limit filings in a domestic relations case. The member said having the presiding judge determine whether to enter a pre-filing order would be a workable solution.
The member said the proposal currently only allows pre-filing orders against new litigation. The member said some problem litigants make excessive filings in existing litigation so there should also be a way to limit these.
Judge Reich MOVED to amend line 21 on page 165 to add "or any new motions in existing litigation" after the word "litigation." Judge Marquart seconded.
A member asked whether pre-filing orders are effective. The member said that a vexatious litigant could look at this rule and see that they can ask to be allowed to file. The member said that a vexatious litigant is likely to file multiple requests for permission to file if it is not initially granted. A member said nothing would stop them from filing a request to file, but if there is a pre-filing order in place it will have gone out to all the presiding judges and they will know the reasons why the person is not allowed to file without permission.
A member said because there is nothing stopping a vexatious litigant from making a request to file, this will just create a waste of resources at a different place in the process, dealing with requests to file. A member said this is a shorter fight than if the party is allowed to file substantive motions. A member said that the requests to file would not implicate the other parties, who are obligated to prepare a response if the vexatious litigant files a motion in the case.
A member said another advantage to pre-filing orders is that they save work for the clerks who are not obligated to scan in reams of documents submitted by vexatious litigants unless they have permission to file. A member suggested that the litigant would just attach whatever they wanted to file to the request for permission to file. Members explained that this was common, but that such supporting material would not be filed unless the request for permission was granted.
A member said that one particular litigant had been pursuing a case for several years, appealing it twice to the Supreme Court. The member said that all of the filings go back to the initial determination in the matter. The member said since the time the litigant has last appeared at a hearing (approximately six months prior to the committee meeting) the litigant had submitted more the 150 documents for filing in the original county of venue along with attempting to file new actions in two other counties and filing numerous petitions with the Supreme Court. The member said this shows how aggressive vexatious litigants can be and
also illustrates the burden this places on any other parties, who are obligated to respond to motions and other submissions, no matter how frivolous.
The Chair said that often, if a vexatious litigant fails to get permission to file, they file some sort of a writ of supervision from the Supreme Court seeking relief. The Chair said the most recent petition of this sort the Court had considered ran more than 200 pages.
A member suggested that the proposed motion language should not be limited to motions but should encompass all filings because vexatious litigants are not likely to give documents formal names like "motion."
Judge McCullough MOVED to amend the motion to delete the word "motions" and insert the word "documents." Mr. Beehler seconded.
The motion to amend the motion CARRIED.
By unanimous consent, the punctuation in the motion was adjusted.
The motion CARRIED.
A member pointed out the language at lines 64-66 on page 167 allowing a pre-filing order to be appealed as a matter of right. The member asked when such an appeal would take place and whether certification under N.D.R.Civ.P. 54(b) would be required before an appeal would be allowed. The Chair said generally in matters involving vexatious litigants there has been a determination or order issued in the case and the litigant keeps filing new documents to try to re-litigate the determination. The Chair said the Supreme Court has consistently reviewed pre-filing orders when the litigant has requested a review, but because conduct leading to a pre-filing order generally does not result from an inadvertent mistake, determining whether the pre-filing order is justified is usually not a complex process.
A member asked whether it would be a good idea for the committee to create a form to be used by litigants subject to a pre-filing order who want to seek permission to file. The member said this might head off the possibility of vexatious litigants filing lengthy free form requests for permission to file.
Judge McCullough MOVED to insert "or any documents in existing litigation" after the word "litigation" at line 83 on page 168 and to insert "or document" after the word "litigation" at line 84 on page 168. Mr. Hoy seconded.
A member said the proposed amendment was intended to make this section of the rule
consistent with the committee's previous amendment.
A member asked whether the list of vexatious litigants discussed in Section 9 of the proposal would be a public list. The Chair said in other states the lists were public. A member said under Administrative Rule 41 the vexatious litigant list contemplated in Section 9 would be a court record and subject to public access. The Chair says making the list public provides a service because if an individual is sued by someone it is useful to know at the start whether that person is on the roster of vexatious litigants.
Mr. Hoy MOVED to insert "or disciplinary" after the word "civil" on line 6 on page 164 and to replace "a civil action" with "litigation" on line 11 on page 164. Mr. Beehler seconded.
A member said that some of the same people who file endless documents in a civil case also file disciplinary actions against the judge and against lawyers involved in the matter. The member said this increases the amount of money and time people involved in an action are required to spend. The member said filing baseless disciplinary complaints is just as vexatious as filing piles of documents and motions.
A member said the motion might be a good idea if it only addressed attorney disciplinary complaints, but the idea of giving a judge the power to prevent a litigant from filing anything including a disciplinary complaint against the judge seems like an overreach. The member said both the disciplinary systems review complaints that have been filed and can summarily dismiss these complaints if there is no basis for discipline.
A member said one reason for the proposal is that it would make an unsuccessful disciplinary action one of the actions that can be counted against a litigant when the court is considering entering a pre-filing order. A member said if the definition of litigation is changed to include disciplinary actions, it will change the meaning of the term throughout the rule. The member said this means that filing a disciplinary action will then be something that a litigant with a pre-filing order will need to get approval to file. The member said requiring approval from the judge for filing a disciplinary action against the judge will cast the judicial system in a bad light by giving the impression that judges are trying to insulate themselves against disciplinary proceedings.
A member questioned what authority the judiciary would have to stop a litigant from filing a disciplinary complaint given that these are handled by entities outside of district court with the ultimate authority to decide in the Supreme Court. A member said that even if a
disciplinary action is considered "litigation," the language of the rule only allows a pre-filing order to bar filings in court so a pre-filing order could not bar the submission of disciplinary complaints to non-court entities like the disciplinary board.
The motion CARRIED 10-4.
Mr. Hoy MOVED to add the words "expense or" before "delay" at line 50 on page 166. Judge McCullough seconded. Motion CARRIED.
Judge McCullough MOVED to add the words "in the courts of this state" after the word "litigation" at line 83 on page 168. Mr. Foss seconded.
A member said the change was needed to make the language of Section 8 parallel to the language of Section 3. A member said the change was not needed because a district court could not use a pre-filing order to bar the filing of a disciplinary complaint with a non-court entity. A member said that a district court could potentially punish disobedience of a pre-filing order with a contempt order.
The main motion to send proposed new Rule 58 to the Supreme Court as part of the annual rules package CARRIED.
RULE 5, N.D.R.Crim.P., INITIAL APPEARANCE BEFORE THE MAGISTRATE; RULE 5.1, N.D.R.Crim.P., PRELIMINARY EXAMINATION; RULE 7, N.D.R.Crim.P., THE INDICTMENT AND THE INFORMATION; RULE 9, N.D.R.Crim.P., WARRANT OR SUMMONS UPON INDICTMENT OR INFORMATION
Staff said Rules 5, 5.1, 7 and 9 had been revised according to the committee's instructions to change the term "preliminary examination" to "preliminary hearing."
Mr. Hoy MOVED to approve the proposed amendments to Rules 5, 5.1, 7 and 9. Mr. Olson seconded.
The main motion to send proposed amendments to Rules 5, 5.1, 7 and 9 to the Supreme Court as part of the annual rules package CARRIED.
FOR THE GOOD OF THE ORDER
The Chair asked whether the committee had any suggestions on topics to be
considered at future meetings.
A member said that the committee should consider amendments to N.D.R.Civ.P. 26 that reflected the provisions in the federal rule on initial disclosures. The member said that Thursday's discussion had shown some level of interest in the committee for such a change. A member suggested that SBAND, the NDAJ and the NDDLA be contacted prior to the September for their views on such a change.
A member said the committee should consider how to update N.D. Sup. Ct. Admin. R. 41 to reflect changes that have occurred in providing access to court records since the time the Odyssey system was implemented. The member said that the public access terminals at each county courthouse were not accounted for under the rule and these had become a major means of providing access to court records. The member said it might be appropriate for other committees such as the Court Technology Committee or the Court Services Committee to provide input on any changes to Rule 41.
The meeting adjourned at approximately 11:45 a.m., on May 13, 2016.
Michael J. Hagburg