MINUTES OF MEETING
Joint Procedure Committee
September 30, 2011
TABLE OF CONTENTS
Rule 41, N.D. Sup. Ct. Admin. R., Access to Court Records 2
Rule 8.13, N.D.R.Ct., In Chambers Interview of Child in Domestic Relations Case 8
Rule 26, N.D.R.Civ.P., General Provisions Governing Discovery 8
Rule 24, N.D.R.App.P., Supplemental Brief of Indigent Defendant; Rule 32, N.D.R.App.P., Form of Briefs, Appendices and Other Papers; Rule 40, N.D.R.App.P., Petition for Rehearing 11
Rule 5.1, N.D.R.Ct., Interstate Depositions and Discovery 12
Rule 804, N.D.R.Ev., Hearsay Exceptions; Declarant Unavailable 16
Rule 16, N.D.R.Civ.P., Pretrial Conferences; Scheduling; Management 17
Rule 14, N.D.R.App.P., Identity Protection 17
Rule 7, N.D.R.Crim.P., The Indictment and the Information 18
Rule 32.2, N.D.R.Crim.P., Pretrial Diversion 19
Rule 46, N.D.R.Crim.P., Release from Custody 20
Rule 58, N.D.R.Civ.P., Entry and Notice of Entry of Judgment 22
Rule 56, N.D.R.Civ.P., Summary Judgment 27
CALL TO ORDER
The meeting was called to order at 9:00 a.m., on September 30, 2011, by the Chair, Justice Mary Muehlen Maring.
Justice Mary Muehlen Maring, Chair
Honorable Laurie Fontaine
Honorable John Greenwood
Honorable William A. Herauf
Honorable Steven L. Marquart
Honorable Steven McCullough
Honorable William McLees
Mr. Larry L. Boschee
Mr. Daniel Dunn
Mr. Robert Hoy
Mr. Richard H. McGee
Ms. Joanne Hager Ottmar
Mr. Steven W. Plambeck
Mr. Bruce D. Quick
Honorable Debbie Kleven
Honorable David E. Reich
Honorable Thomas J. Schneider
Mr. Galen J. Mack
Assistant Dean Jeanne L. McLean
Mr. Kent Reierson
The Chair welcomed a visitor, Jack McDonald, representing the North Dakota Newspaper Association. The Chair announced that this would be the last meeting for three members, Judge Schneider, Mr. Mack and Mr. Plambeck, whose terms had expired. Staff announced that the hearing on the Committee's Annual Rules Petition would be held October 24.
APPROVAL OF MINUTES
Judge Herauf MOVED to approve the minutes. Judge McLees seconded. The motion to approve the minutes CARRIED unanimously.
RULE 41, N.D. Sup. Ct. Admin. R., ACCESS TO COURT RECORDS (PAGES 28-47 OF THE AGENDA MATERIAL)
Staff explained that the Committee's proposed amendments to Rule 41 were before the Supreme Court as part of the Committee's annual rules package. Staff said that the Court Technology Committee had addressed the Committee's proposal that a policy and procedure be developed to categorically remove from Internet display certain criminal records but had rejected the proposal. Staff reported that the Court Technology Committee had indicated that it would submit objections to the Committee's proposed amendments to Rule 41.
Mr. Jack McDonald spoke about his objections to the proposed amendments to Rule 41, which he had previously presented to the Court Technology Committee. He said that the courts have been moving into technology and providing greater access to information for the public. He said that we should not take a step backward and close off certain records to public access. He said the proposed change would reverse years of access to criminal dockets. He said that criminal dockets historically have been one of the basic public records in North Dakota and people have always been able to go to the courthouse and look at the docket.
Mr. McDonald said that his media clients rely a great deal on docket information to determine what is going to happen and what has happened in courtrooms. He said the proposed rule change would create two dockets. He said that the docket in the courthouse would stay the same but the docket on the Internet would be different. He said that this would raise questions about which is the real record and about whether record searches would be accurate.
Mr. McDonald said the day was coming when the electronic record would be the only record. He said many businesses had eliminated non-electronic records. He said in bankruptcy court, the only record was the electronic record and there was no paper docket. He said the proposed change was the wrong change to make in light of these continuing developments.
Mr. McDonald said that when Rule 41 was restructured in 2006, provisions were adopted to allow people to seal documents or remove information. He said these provisions were still in the rule and could still be used in appropriate situations. He said to allow easy removal of records in the categories listed in the proposed amendments was too broad of a change. He said that attorneys and judges should not be determining what can be seen on the docket. He said the docket should be available to the public.
Mr. McDonald said that federal dockets were open and the people can go on PACER and see federal dockets throughout the country. He said that the federal docket available on the Internet was the official docket and there was no reason why the docket available on the Internet in North Dakota should be different.
Mr. McDonald said the public is intelligent and if the on-line docket said a case was dismissed or a defendant was acquitted, the public would understand what this means. He said a case can be dismissed for many reasons and it would be deceptive if records of dismissed cases or acquittal cases are removed from the Internet.
Mr. McDonald said that people rely on the accuracy of the docket. He said public and
parochial schools are required to screen teachers and the first step is to look up criminal records on the Internet docket. He said businesses do the same when hiring new employees. He said it would be a problem for these people if the Internet docket was no longer a reliable source of information.
Mr. McDonald said he had supplied case references from Iowa for the Committee to review. He said he had also found a speech presented before the Conference of Chief Justices in August by a CNN reporter who argued that the vast majority of court filings should be made available to the public over the Internet because it is less expensive for the courts and provides more openness to the public. The reporter argued that the process of viewing court records should be as friendly as possible.
Mr. McDonald said that the technology exists to allow the public to have accurate access to the docket. He said he had read the Committee's minutes and understood the rationale behind the proposed rule changes. He said, however, the concern of some people who have problems with their information being available over the Internet does not justify changing the rule and a longstanding tradition of open dockets.
Mr. McDonald admitted improvement in the way case records and docket information are displayed on the Internet warrants consideration. He said it would be better if information on case disposition was easier to locate and more clear. He said that the Court Technology Committee had indicated that it was concerned with the way records were displayed currently.
Mr. McDonald said he hoped the Committee would consider withdrawing its support for the proposed amendment.
A member said that the proposal would make the removal of certain records discretionary with the court. The member said that dismissals and acquittals would not be categorically removed from the Internet record. The member said a record would only be removed after the court reviewed it and considered whether to remove it.
Mr. McDonald said that the rule already allowed courts to consider requests to remove records on a case-by-case basis.
A member said the proposal provides the court the authority in an individual case, if the charges are dismissed, the person is acquitted, or the retention period expires, to determine whether the case should be removed from the Internet record. The member said the court would not have to apply the balancing test in these cases, but it would have to consider them one at a time. The member said that, under the language of the proposal, the
court could not enter a blanket order excluding records from the Internet.
Mr. McDonald said that, if the proposal is approved, every criminal lawyer in a case involving a dismissal or acquittal would apply to have the record taken off the Internet. A member said that it would then be up to the judge in the case to decide whether this was appropriate in the particular situation.
In questioning the Iowa cases that Mr. McDonald had cited to the Committee, a member said that those cases seemed to involve an interpretation of Iowa's open records law. The member said that the Iowa cases did not seem on point because access to court records in North Dakota is governed by court rule and not the open records law.
Mr. McDonald replied that the Iowa cases are instructive because they involved the interpretation of a law allowing sealing of certain criminal cases when a conflicting law required the criminal docket record to be preserved. He said that the balancing analysis that was put into Rule 41 should be preserved because it required the court to consider the reasons for possible exclusion of a record and balance these against the public's right to have access to court records.
Mr. McDonald said the primary problem with the proposal is that it creates two records. The Internet docket would be different than the docket in the courthouse. A member said that one way to resolve this problem would be to eliminate public access to court records over the Internet and go back to having the courthouse as the only place where records could be accessed.
Mr. McDonald said that if requests were made after every dismissal or acquittal to remove the record from Internet access, the court would likely start granting removal requests automatically rather than address a separate motion or request in every case.
Mr. McDonald said that removal of Internet records would create confusion on the docket to the detriment of the public. He said high profile cases arise that are covered in the news but end in acquittal. If the Internet records for such a case are removed, it would not serve the public.
A member commented that more than one or two anecdotal cases prompted the Committee to recommend the rule change. The member explained that numerous individuals have sought help and complained about records of dismissed cases being displayed on the Internet, resulting in court administrators and judges spending significant time with people who believe that the Internet display of records involving dismissed case has affected their employment and housing. The member said that much of the problem is caused by how the
Mr. McDonald said information about criminal charges would be available even if removed from the Internet, but that if information was removed from the Internet yet still available elsewhere this would create confusion about which record was accurate. He said that employers can go to the BCI for criminal record information, but they would have to pay for the record that is now freely available on the Internet.
A member said that the Internet gives docket entries but not case information that explains why a matter is resolved in the manner it was. The member said it is better practice to go to the BCI record for complete information.
A member told Mr. McDonald that he understood the concerns a person might have if they think they have made a proper review by looking at the Internet record when it may not be complete. The member said this concern could be resolved by putting a disclaimer on the Internet search indicating that some records may not be on the site. The member said that all court records are not available on the Internet now, such as cases that have gone through deferred imposition of sentence.
A member said that if the rule proposal is adopted, removing records from the Internet would be the exception, not the rule. The member said that acquittals were generally very rare. The member said if a person gives a good reason to have a dismissed case removed from the Internet, the court will probably grant the request. The member said that if a person is acquitted after a high profile murder case, it was unlikely this record would be removed. The member said, realistically, the cases that would be removed from the Internet under the rule proposal would be those cases where charges never should have been brought in the first place. The member said these are the cases where the person is genuinely disadvantaged by having the record retained on the Internet. The member said the courts are getting a steady stream of requests in cases like this asking what they can do to have the record removed.
Mr. McDonald said these cases would still be available on the BCI site. The member replied that it is the easy availability of the record on the Internet, with charges listed but case disposition unclear, that creates problems for people. The member said the proposal offers an equitable solution for people who have dismissed charges against them.
Mr. McDonald said that allowing judges to use their discretion to remove records from the Internet would create problems in itself. He said that judges in one part of the state may be more willing to remove records from Internet access, which would create disparity
between records in different parts of the state.
A member said the official record is the BCI record. The member said that courts and states attorneys are required to send information to the BCI so this record is always complete. The member said that people who want or need to see the official record should look to the BCI record. The member said people look at the Internet and make assumptions from the incomplete information provided and this is causing a genuine harm to people who might have had charges brought against them at some time.
Mr. McDonald said the answer would be to have the disposition up front on the Internet record. A member said that so far the information technology people who post the records have not been able to put the disposition up front. The member said a disclaimer on the site explains this, but people generally click through the disclaimer without reading it.
A member said that the Committee would probably feel differently about the need for the proposed amendment if the disposition information on the Internet was displayed more accurately and very clearly. The member said that courts also may need to provide more information in the disposition about why charges were dismissed, such as "dismissed for lack of evidence" or "dismissed under a plea agreement."
A member pointed out to Mr. McDonald the fact that the Committee was also proposing to categorically restrict access to domestic violence protection and disorderly conduct restraining order petitions that had been found to be inadequate on their face. The member asked whether Mr. McDonald had any objection to this proposal. Mr. McDonald said his main concern was removal of dismissals and acquittals from the Internet.
Staff said that the Chair of the Court Technology Committee, Justice Sandstrom, had raised objections to allowing records to be removed from the Internet after the records retention period. Staff said Justice Sandstrom had noted that some convicted people could apply to get their records taken off the Internet while still serving prison sentences.
The Chair thanked Mr. McDonald for participating in the meeting.
A member asked when the Court Technology Committee was planning to make changes to the Internet display to move the disposition to the first page of the search. Staff reported that representatives from Tyler Technology were working on improving the display.
The Committee decided to take no additional action on the rule proposal.
RULE 8.13, N.D.R.Ct., IN CHAMBERS INTERVIEW OF CHILD IN DOMESTIC RELATIONS CASE (PAGES 48-50 OF THE AGENDA MATERIAL)
Staff explained that the Committee's proposed new Rule 8.13 was before the Supreme Court as part of the Committee's annual rules package. Staff said that Committee member Joanne Ottmar had requested that the rule be brought back to the Committee for one final review before the Supreme Court rules hearing. The Committee decided to take no additional action on the rule proposal.
RULE 26, N.D.R.Civ.P., GENERAL PROVISIONS GOVERNING DISCOVERY (PAGES 51-75 OF THE AGENDA MATERIAL)
Staff explained that the Committee had considered and rejected proposed amendments to Rule 26 relating to communications between attorneys and expert witnesses at the September 2010 and April 2011 meetings. Staff said that Committee member Larry Boschee had prepared new proposed amendments to Rule 26 in response to the Committee's previous objections.
Mr. Boschee MOVED to recommend adoption of the proposed amendments. Mr. Quick seconded.
Mr. Boschee explained his proposed amendments. He said that the Committee had dealt with two issues regarding Rule 26 at the last meeting: whether North Dakota should adopt the new federal language on materials provided to experts by attorneys and whether North Dakota should allow parties to obtain additional information on experts through interrogatories.
Mr. Boschee said that the proposed amendments distinguish between retained and non-retained experts, limiting the types of information that can be obtained from the latter. He said the purpose for the amendments was to be a bridge between the current system and the future, when North Dakota may adopt the federal pre-trial discovery disclosure rules and expert report requirements.
A member asked whether the proposed amendments allowed for the discovery of draft reports. A member said that the language did not refer specifically to draft reports and it was neutral on draft reports just like the current rule. The member said the federal rule specifically makes draft reports non-discoverable.
A member asked whether information in the form of thoughts, impressions and opinions provided by the lawyer to the expert was discoverable under the proposed
amendments. A member said that the proposal is neutral as to this information, just like the current rule. The member said discovery of such material would be left up to the courts and case law.
A member observed that the proposed amendments would not give a lawyer any guidance as to what types of communication between an expert and a lawyer would be discoverable. A member replied that, because the Committee chose not to adopt the new federal language, the rule continued to be neutral on this subject.
A member said that the use of the language "facts and data considered by the witness" in the proposal seemed to allow discovery of all material provided to an expert. A member replied that the language was from the federal expert disclosure rule and would be an enhancement of the current language of the rule. A member said this language would give parties ammunition in seeking disclosure of additional information.
A member said that, under the proposed language, lawyers may now need to write two letters to expertsone as a cover letter for materials being sent for review and another that gives the lawyer's theories about what happened. The member said the second letter might be necessary because it would be protected by work product privilege.
A member said the whole purpose of the expert disclosure requirement was to avoid surprise at trial, requiring experts to report their opinions and the basis of their opinions prior to trial. The member said that expert discovery now too often is focused on attempting to uncover work productdead end theories experts had considered and abandoned, for example. The member said trying to force disclosure of this material, often found in draft reports, was a waste of time and caused unnecessary expense without fulfilling the purpose of expert opinion disclosure, avoiding surprise at trial. The member said attorneys should be able to communicate privately with an expert witness without the other side being able to discover all that was said. The member said that expert disclosure has gone too far and that work product should not be discoverable.
A member said the language of the proposal was imprecise, but it did not seem to open up work product for disclosure. The member said the language seemed to allow disclosure only of factual information provided to the expert, not all attorney communications. The member said opposing counsel should have the right to know all the facts an expert considered, even if the expert ultimately decided a given fact was not important.
A member said that disclosing the materials that were given to an expert to review is fine, but requiring disclosure of all "facts or data" considered opens up disclosure of all
letters, emails and other communications.
A member said the proposed language was from the federal rule. The member said that the language was not intended to open up discovery of letters, emails or other work product. The member said the language was intended simply to allow interrogatories to be used to obtain the same information that, in federal court, experts are required to provide in a report.
The member said, regardless of the intent, the proposed language could be interpreted overly broad. A member replied that disclosing everything relating to the expert's opinion is the best approach. The member said that if the expert's opinion is affected by something the attorney says, this should be disclosed.
A member asked whether practicing attorneys were having a problem with Rule 26 as it exists and whether there was a demonstrable need to amend the rule. A member replied that a few problems have arisen because the working rule, generally understood among civil practitioners, was that everything given to the expert was discoverable. A member said the problem was not with the rule but in gray areas where the work product rule could arguably apply. The member said the only purpose in changing the rule would be to clarify these gray areas.
A member said that once something is disclosed to an expert, it is no longer work product. A member replied that this may be true for raw data, but it is not the case for communication about strategy and theories between attorney and expert. A member said it seemed like any problems with the rule were in areas that were not addressed by the proposed amendments. A member replied the purpose of the proposed language was to more closely track the federal rule to make practice more consistent.
A member said the proposed language could be a first step in building a bridge to a possible future where expert reports are required in North Dakota. The member said that the advantage to requiring reports is that, when there is a report, a deposition may not be necessary.
A member replied that the interrogatory originally was all the discovery provideda party could not depose an expert. The member said the rule was written with the hypothetical question in mind, because this was the way expert testimony was formerly presented. The member said that obtaining the facts and basis for testimony was key, because this would reveal the hypothetical question. The member said with the elimination of the hypothetical question, and with depositions of experts now allowed, obtaining the facts and basis for testimony through interrogatories may not be as important.
A member said that disclosures are made as part of the discovery process, and parties generally disclose the expert report just to protect themselves, even though this is beyond what is required. A member said that when the federal rule was first enacted requiring disclosure of reports, the reaction from practicing attorneys was negative. The member said that parties have gotten used to providing reports and it is no longer a big deal. The member said adopting a report requirement in North Dakota is a path that should be considered someday.
A member said the use of the open-ended term "may" in the proposal could possibly broaden the scope of discovery to consultants who have not yet been retained to testify at trial. The member said that the proposed language also might allow discovery of any party employee who could possibly give "expert" testimony. A member replied that the proposed language reflects the language used in the federal rule.
The motion to amend Rule 26 FAILED.
A member pointed out two references in Rule 26 to "Rule 26(b)(2)(A)." The member said that this paragraph of the rule no longer existed. Staff was directed to correct the reference.
RULE 24, N.D.R.App.P., SUPPLEMENTAL BRIEF OF INDIGENT DEFENDANT; RULE 32, N.D.R.App.P., FORM OF BRIEFS, APPENDICES AND OTHER PAPERS; RULE 40, N.D.R.App.P., PETITION FOR REHEARING (PAGES 76-89 OF THE AGENDA MATERIAL)
Staff explained that the Committee looked at the Supreme Court's suggestion that page and word limits be reduced for appellate briefs at its April 2011 meeting. After initially rejecting the suggestion, the Committee instructed staff to research whether there was a trend at state appellate courts to reduce page limits for briefs. Staff's research did not reveal a trend to reduce brief size limits and suggests that North Dakota brief limits are average or slightly below average.
The Chair asked staff whether the page limits reported in staff's research were from the highest state appellate courts. Staff said they were, and that when states had separate page limits for their highest courts and intermediate appellate courts, the page limits for the intermediate courts were lower. The Chair reminded the Committee that North Dakota does not have an intermediate court of appeals and that the highest courts in states with intermediate appellate courts usually only hear 30-80 cases a year while the North Dakota Supreme Court hears 250-300 cases a year.
A member asked whether the Supreme Court was overwhelmed by the amount of briefs it was required to read and whether the proposed four-page reduction in brief size would actually help the Court. The member said that the proposed change would probably not have a great impact on lawyers in criminal practice who generally do not stretch the current page limits.
The Chair said the majority of appealing parties seemed to use all the pages allowed by the rules, which can be a burden to the Court, especially when there are more than two parties in a case or when there are interveners or amici. The Chair said the Court limits the cases it hears to 30 a month so that its members can adequately review all the materials submitted by appealing parties. The Chair said the decreasing page limits would be one tool that would reduce the work load on the Court.
A member said that of the states that do not have intermediate courts of appeal, five have the same or higher page limits as North Dakota and five have lower page limits.
Mr. Hoy MOVED to recommend adoption of the proposed amendments. Judge McLees seconded.
A member asked how often the Court turned down requests for additional brief pages. The Chair said that most requests for additional pages were granted.
A member said that the trial courts had also been receiving increased written submissions, especially from self-represented litigants. The member said it takes a lot of time to review this material.
The motion to recommend adoption of the proposed amendments to Rules 24, 32 and 40 CARRIED by an 8-5 vote. Because the motion passed with support of less than two-thirds of the members present, the proposal will be revisited at the January 2012 meeting.
RULE 5.1, N.D.R.Ct., INTERSTATE DEPOSITIONS AND DISCOVERY (PAGES 90-110 OF THE AGENDA MATERIAL)
Staff explained that the Committee had considered the Rule 5.1 proposal in April and had approved it, subject to further research on where to place it in the rules and whether any additional rules required modification before it could be adopted. Staff reported that the subpoena rules in the civil, criminal and juvenile rules would need to be modified to conform to the proposed new rule and indicated that the Committee would need to provide guidance on the best approach for the rule modifications. Staff also reported that some states that had
adopted the rule had included it in their civil rules or otherwise limited it to civil actions.
A member said that the rule should not be limited only to civil actions. A member replied that, because the proposed rule only applied to how a subpoena from out of state was served, it would be easier to have only one service procedure to follow, with the preferable procedure being the civil service procedure because it is most extensive. The member said the proposal's current language requires an out-of-state subpoena to be served depending on the type of case involved, so subpoenas filed in different types of cases would need to be served under different rules, either the civil, criminal or juvenile rules.
A member said the proposed rule was not needed. The member said that, currently, an out-of-state party can take a deposition in this statethe party need only file a certified copy of the deposition notice with the clerk, who then issues a North Dakota subpoena. The member said that the rule contemplates allowing service and enforcement of a subpoena issued in another state in this state. The member wondered whether the subject of an out-of-state subpoena in this state could be hauled before the out-of-state court for contempt if they do not comply with the subpoena.
The member said now, when the certified deposition notice is filed with our court and a subpoena is issued, it is our North Dakota court that enforces the subpoena if an issue arises. The member said that an out-of-state court could not acquire jurisdiction over a North Dakota citizen to enforce an out-of-state subpoena under the current system. The member said if the proposed new rule allows importation and enforcement of foreign subpoenas, there is a possibility that the subjects of the foreign subpoenas will become subject to the jurisdiction of the foreign court.
A member said that the rule seemed to provide that the North Dakota clerk would issue a North Dakota subpoena when the out-of-state subpoena was presented. A member asked why it is necessary to present a subpoenawhy not just a deposition notice? A member said that rule went beyond depositions, allowing premises inspection and production of documents.
A member said that the states that chose not to have the uniform rule apply to their criminal matters were likely states that had very narrow deposition rules. The member said most states do not allow discovery depositions in criminal cases. The member said North Dakota has a very broad criminal deposition rule.
A member said that allowing parties to use the civil rules to serve parties would eliminate confusion and questions about what type of action is underlying the discovery request. The member said it would be easiest to give parties one rule to apply, N.D.R.Civ.P.
45. The member said this could be accomplished by striking one sentence from the rule proposal.
A member said if the uniform rule was placed as Rule 5.1 in the Rules of Court as now proposed, it was less likely to be found and used. The member said if it was placed in the Rules of Civil Procedure it would be more likely to be found. The member said that attorneys do not often refer to the Rules of Court.
The Chair confirmed that the consensus of the Committee was that the proposed new uniform rule should apply to civil, criminal and juvenile actions. The Chair asked if the Committee preferred that the rule be placed in the civil rules as Rule 45.1. Several members indicated that was their preference. A member responded, however, that it would be preferable to have it in the Rules of Court with references in the civil, criminal and juvenile subpoena rules pointing the way to the Rules of Court and the rule itself. A member said if the rule was placed in the Rules of Civil Procedure, someone could argue that it only applied to civil subpoenas.
A member said it was important to recognize that the different sets of rules prescribe different methods of service for specific reasons. The member said criminal and juvenile rules recognize that indigent parties can issue subpoenas tendering fees and mileage, while the civil rules do not allow a subpoena to be enforced if fees and mileage are not tendered. The member said it would be best to place the proposed rule in the Rules of Court and cross-reference it from the respective civil, criminal and juvenile subpoena rules. The member said that cross-reference should be in the text of the rules.
Staff was directed to prepare rule amendments cross-referencing to the proposed new rule.
A member said that the proposed new rule seemed to conflict with the longstanding procedure under N.D.R.Civ.P. 45 that the North Dakota clerk may issue a subpoena on proof of service of notice. The member said that a problem with subpoenas, especially in states like North Dakota where the attorney can sign the subpoena, is that the other party may not get notice. Rule 45 requires proof of service of notice before a clerk can issue a subpoena, which is an added protection that does not appear to be part of the proposed new rule.
Staff suggested that a proof of notice requirement could be added to the proposed new rule if the Committee desired.
A member said that the rule required a subpoena issued by a court of record. A member replied that when an attorney is allowed by the rules to issue and sign a subpoena,
the subpoena is considered to be issued by the court of record. The member said that the definition of "subpoena" in the rule seemed to include a subpoena signed by an attorney, because such a subpoena would be issued by a court of record. The member said it was not clear from the proposed language of Rule 5.1 that a subpoena needed to be generated by a court.
A member said that the uniform rule may be needed because some states' statutes and rules do not cover situations when a party wants to serve a subpoena in a foreign state. The member said, however, that North Dakota had long ago implemented a procedure to cover this circumstance.
A member said that the proposed rule leaves open the potential for abuse because it does not define who is going to issue a subpoena and who the subpoena must be served on. The member wondered whether someone acting without a lawyer could issue subpoenas that could be served under the rule in North Dakota.
A member said it also seemed possible that a subpoena could be issued and then subject to a motion for protection in the original jurisdiction, but that our Court would still be required to issue a subpoena while the motion was pending. A member said that, even though the proposed rule requires that a subpoena issued under the rule must be enforced by the court here, this would not necessarily stop a foreign court from conducting a contempt procedure to enforce compliance with its original subpoena.
A member said that issues of conflicting jurisdiction over subpoenas are not a problem under current procedure because the existing rules allow the court here to issue a subpoena upon receipt of a deposition noticethere is only one subpoena to enforce, not competing subpoenas.
A member said a reason for the rule seems to be eliminating the need for the local lawyer. A member said the rule did not consider acting to have a subpoena issued to be an appearance in the state. The member asked who would discipline a lawyer if there was misbehavior in connection with having a subpoena issued under the rule.
A member commented that the Committee generally considers the adoption of uniform rules when they appear, but absent a problem in handling out-of-state deposition requests, a legitimate reason to adopt the proposed rule may not exist.
A member suggested that a representative of the Uniform Laws Commission should be invited to the next meeting to answer some of the questions the Committee has posed about the uniform rule.
RULE 804, N.D.R.Ev., HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE (PAGES 111-124 OF THE AGENDA MATERIAL)
Staff explained that the Committee had discussed proposed amendments to Rule 804 based on changes made to the federal rule at the April meeting but had concluded that adopting the amendments would change practice in the state. Staff presented the Committee with revised proposed amendments intended only to change the form and style of Rule 804.
Judge McLees MOVED to recommend adoption of the proposed amendments. Judge McCullough seconded.
A member asked whether the proposal would make a substantive change because the new language starting at line 46 on page 115 seems to require corroborating circumstances even in civil cases, which would be an additional burden to get a statement against interest admitted. A member pointed out that language in the proposal limits the corroborating circumstances requirement to criminal cases, even though the structure of the sentence did not make this clear. A member suggested the sentence be rewritten to put the limiting provision in front.
Staff said that part of the federal philosophy in making form and style changes to rules is to convert a rule's requirements to a list if possible and the lack of clarity in the sentence at issue possibly is result of this approach.
A member said the use of the term "only if" in the sentence beginning at line 42 on page 115 seemed to impose a much higher standard than the existing rule. A member said that the language of the existing North Dakota rule was preferable to the proposed change.
A member stated that the current rule complies with the standard set out in Crawford v. Washington, but the federal rule was deficient and required a change. The member said that North Dakota should retain its current rule, and the motion to amend Rule 804 should not be approved.
Staff advised the Committee that it would be reviewing the federal form and style amendments to the Rules of Evidence in the coming year and would have a future opportunity to consider the usefulness of the federal proposal.
The motion to recommend adoption of the proposed amendments was WITHDRAWN.
RULE 16, N.D.R.Civ.P., PRETRIAL CONFERENCES; SCHEDULING; MANAGEMENT (PAGES 125-131 OF THE AGENDA MATERIAL)
Staff explained that a review of the March 1, 2011, amendments to Rule 16 had revealed that a paragraph had been inadvertently omitted from the rule. Staff said this matter had been presented to the Supreme Court, which had referred it to the Committee for discussion and recommendations. Staff presented proposed amendments to Rule 16 that would restore the omitted language.
Mr. Plambeck MOVED to recommend adoption of the proposed amendments. Judge Herauf seconded.
A member said clerks schedule hearings automatically under Rule 16 and restoring the omitted provision would not adversely affect practice.
The motion to recommend adoption of the proposed rule amendments CARRIED.
Staff said that the Committee's decision would be reported back to the Court.
RULE 14, N.D.R.App.P., IDENTITY PROTECTION (PAGES 132-134 OF THE AGENDA MATERIAL)
Staff explained that Justice Sandstrom had requested the Committee to consider an amendment to Rule 14 on identity protection to allow people whose full birth dates appear in an electronic version of an appellate opinion to request their birth date be redacted.
Judge McCullough MOVED to recommend adoption of the proposed amendments. Judge Herauf seconded.
Mr. Quick MOVED to amend the proposal to remove "month and" at line 20 page 133. Ms. Ottmar seconded.
A member said that removal of the term "month" would make the proposed amendment consistent with N.D.R.Ct. 3.4.
The motion CARRIED.
The motion to recommend adoption of the proposed rule amendments CARRIED.
Staff informed the Committee that the proposed rule amendments would not be
presented to the Court until July 2012 unless the Committee moved to present it to the Court immediately as an emergency measure.
Judge McCullough MOVED to send the proposed amendments to the Court immediately. Judge Marquart seconded. Motion CARRIED.
RULE 7, N.D.R.Crim.P., THE INDICTMENT AND THE INFORMATION (PAGES 135-142 OF THE AGENDA MATERIAL)
Staff explained that a member had requested that the Committee consider amendments to Rule 7 to clarify that cities bringing ordinance violations into district court must bring them in the name of the city.
Judge Herauf MOVED to recommend adoption of the proposed amendments. Judge Fontaine seconded.
A member asked whether the proposed amendment would affect cases in which a party in municipal court had requested a jury trial and transfer to district court. A member replied that the proposed change was intended to allow the caption to reflect who was actually prosecuting the case.
A member added that the proposed change would apply when a city did not have a municipal court. A member replied that it would be useful to have the amendment apply also in cases in which the matter had been transferred from municipal court to district court because these cases are still prosecuted by the city, not the state. Staff said that N.D.R.Crim.P. 37 governed cases appealed from the district court.
The motion to recommend adoption of the proposed rule amendments CARRIED.
By unanimous consent, the Committee instructed staff to add a cross-reference to Rule 37 to the Rule 7 explanatory note.
A member said that the rule refers to the indictment and the information. Indictments are issued by grand juries which do not exist in municipal court. As for the information, cities generally charge by complaint or by traffic citation. The member asked whether it was appropriate to address city prosecutions in a rule titled "The Indictment and the Information."
A member said the City of Fargo charges non-traffic offenses by information, so it is not unheard of for the information to be used in municipal court. The member said this is probably not the case in smaller cities.
A member said that Rule 3, referencing the complaint, does not address captioning of cases in the same manner as in Rule 7.
A member explained that the matter arose when a new city attorney read the rule, saw the requirement that cases be prosecuted in the name of the state, and concluded that cases in district court need to be prosecuted by state's attorneys, not city attorneys. The member said the longstanding practice had been for city attorneys to prosecute city cases that ended up in district court.
A member said that the language of Rule 7, which allows misdemeanor prosecutions to be brought in district court by complaint, may make the amendment just passed by the Committee unnecessary in situations when a city prosecutes by complaint. The amendment simply clears up any confusion when the prosecution is by information.
A member said that old school prosecutors always file a complaint on misdemeanors and even felonies, delaying filing of the information until after the preliminary examination. The member said today prosecutors are filing informations more frequently up front so they do not have to file one later after the preliminary examination. A member said that some prosecutors title their charging document complaint/information to cover all bases. A member said the rules reflect the old style approach.
A member asked whether the judiciary cares whether charging documents filed by municipal prosecutors are captioned in the name of the city or the state. A member responded that a charging document filed by a city should be captioned in the name of the city regardless of whether it is an information or a complaint. A member said the city attorney does not represent the state and, if a matter is brought in the name of the state, it should be brought by a state's attorney.
A member said the existing language of the rule would allow a city prosecutor to file a complaint in the name of the city in a misdemeanor case, so the rule does not require any additional changes to allow filing of complaints in the name of the city.
RULE 32.2, N.D.R.Crim.P., PRETRIAL DIVERSION (PAGES 143-147 OF THE AGENDA MATERIAL)
Staff explained that a member had recommended that Rule 32.2 be amended to specifically allow the payment of financial penalties as part of a pretrial diversion agreement.
Mr. Boschee MOVED to recommend adoption of the proposed amendments. Mr. Quick seconded.
A member said that some prosecutors have indicated that they would be willing to use the pretrial diversion rule more often if a financial penalty could be imposed as part of the diversion agreement. A member said that it would be possible to do fees and costs on a diversion but imposing fines can only be done when there is a conviction.
A member said that a client had entered into a plea agreement involving pretrial diversion and the payment of restitution. The court approved the agreement but the clerk would not enter it because the rule did not specifically allow for financial penalties as part of a diversion agreement.
Judge McCullough MOVED to amend the proposal at line 23 on page 145 to remove the word "fine" and also to remove the word at line 73 on page 147. Judge Herauf seconded. Motion CARRIED.
The motion to recommend adoption of the proposed rule amendments CARRIED.
N.D.R.Crim.P. 46, RELEASE FROM CUSTODY (PAGES 148-170 OF THE AGENDA MATERIAL)
Staff explained that attorney Mike Hoffman, in a letter written on behalf of the N.D. Association of Criminal Defense Lawyers, had requested that the Joint Procedure Committee discuss the issue of 24/7 sobriety program participation being used as a condition of bail.
A member said that judges seemed to be requiring 24/7 program participation on a case-by-case basis and not across the board. A member said that, in Cass County, there are judges who never require 24/7 program participation.
A member said that the Northwest Judicial District has more people on the program than any other district in the state. The member said the main problem with the program is noncompliance and alleged violations by the participants. The member said that when participants are issued alcohol monitoring bracelets as an alternative to reporting for testing, alleged tampering with the bracelets is a problem.
A member said that enforcement is the biggest issue: What does the court do when a violation is alleged? The member said law enforcement tends to detain a participant who tests positive, and a new statute supports this, allowing the participant to be held until they appear before a judge. The member said often communications break down when such detentions occurthere is no paperwork and defense counsel is not notified that the participant will appear in court the next morning. As a result, generally the participant is simply placed back on the 24/7 program. The member said that courts and police have been
working to better document 24/7 violations and inform attorneys of hearings.
A member said that spending a night in jail likely has some impact on the likelihood the participant will violate the sobriety requirements again.
A member said the purpose of bail is to ensure a defendant's presence and that defendants have the presumption of innocence. The member said one alternative is to offer the defendant a choice between a higher cash bail requirement or participation in the program with a lower bail.
A member said that if the Committee were to amend the rule, it should consider developing an enforcement mechanism for 24/7 violations because this is a problem area for courts.
A member said that bringing criminal charges against a defendant for violating a bail condition does not seem like a good approach to address 24/7 violations. A member said no two judges handle the enforcement aspect of 24/7 the same.
A member asked if using 24/7 results in more defendants appearing in court. A member said the only purpose of bail is to ensure the presence of defendants in court so judges would not use 24/7 if it did not ensure court appearances. The issue is not whether the defendant is going to offend again but whether the defendant will skip. A member said the constitutional presumption is that a defendant should be released on bail.
A member said that it would be difficult to create a statewide enforcement provision because enforcement problems vary by region. A member said that the NWJD, has 4-5 alleged 24/7 violation cases a day. The member said that violations include no-shows, positive tests, and tampering. The member said that attorneys are not generally informed of violation hearings so they generally are not on hand and defendants fend for themselves.
A member said the Supreme Court has determined that a bail hearing is a critical stage of the proceeding and a defendant has a constitutional right to counsel.
A member said that criminal defense attorneys seem to want the Committee to draft a rule that would nullify what the Legislature has done to promote the 24/7 program. The member asked whether a defendant can appeal a 24/7 bail order so that the Supreme Court could decide the legality of the requirement. Members responded that it is difficult to appeal a bail decision except on an extraordinary writ.
A member said that the Legislature did not enact the 24/7 program as a mandatory bail
requirement. Rather, the statute clearly authorizes use of the 24/7 program as a bail requirement discretionary with the court.
A member said that it is in the defendant's best interest not to violate the law while out on bail and the 24/7 program and other treatment and testing requirements help encourage defendants to obey the law.
A member said that the 24/7 requirement can create problems for participants who work. The requirement to appear for testing at a designated time, and the need sometimes to wait to be tested, can conflict with the participant's work schedule. The member said this is a legitimate problem, but it's not a problem that could be solved by amending Rule 46.
A member said the only problem that could be addressed by amending the rule would be to install a uniform enforcement mechanism that would apply when a participant is alleged to have violated the conditions of the 24/7 program.
A member said a rule amendment could also address what to do about alleged violators who appear without an attorney. A member said the hearing should not go forward if the alleged violator does not have an attorney present, and the attorney should be contacted and allowed to participate in the hearing by phone if necessary. A member said this solution would not work in the districts with larger population and case loads.
Staff suggested that he could research the rules and enforcement mechanisms being used in other jurisdictions that have adopted the 24/7 approach. The Committee instructed staff to go forward with the proposed research and to report back to the Committee in January.
RULE 58, N.D.R.Civ.P., ENTRY AND NOTICE OF ENTRY OF JUDGMENT (PAGES 176-182 OF THE AGENDA MATERIAL)
Staff explained that a member had requested that the Committee discuss whether it was necessary to amend Rule 58's provisions on service and filing of the notice of entry of judgment to reflect practice under the newly implemented electronic filing system.
A member said that this issue had been discussed among the Unit 2 staff. The member said the staff had researched whether the clerk had to send out any notices of decisions by judges. The member said that if a judge takes a matter under advisement and prepares an order, the order will be served on the lawyers. The member said that the clerk will not serve any other notices of entry on any parties in any other matters. The member said the parties and their attorneys will be responsible to access these on the Odyssey system.
A member asked which notices the clerks previously served that they will no longer serve. A member said that, prior to the last several years, the clerks were not serving any notices of entry, and parties and attorneys needed to call the courthouse to inquire on case status. The member said that a new court administrator arrived from Minnesota and adopted an approach of sending notice of entry whenever the court acted in a matter. The member said that, after several years of using this approach, staff researched the rules, determined that this was not required, and decided not to do it anymore.
The member said that this new approach would eliminate duplication of effort. The member noted that the appellate rules require the attorney to serve notice of entry to start the time for appeal.
A member said that the Minnesota courts send out a notice every time they make a decision. A member said that Unit 2 had taken this approach but would no longer be sending out notices of decision. A member asked whether attorneys then would be required to keep looking at Odyssey to find out whether a matter such as a discovery dispute had been decided. A member said that if a judge takes a matter under advisement, the judge's office will send out a notice of entry of an order and the party can access the document on Odyssey.
A member said the main policy change is that when a clerk generates a document, like a judgment, the clerks will no longer be sending out notice. The member said that the rules require attorneys to do the notice of entry of judgment and with clerks and attorneys doing notices of entry of judgment, there was a duplication of effort that resulted in multiple scans of similar documents (with different dates) being entered into the Odyssey system. The member said that attorneys and parties would have to check the Odyssey system or call the courthouse to find out whether the clerk had filed a judgment in a matter.
A member said that attorneys draft a proposed order and a proposed judgment and submit these to the judge. If the judge approves and signs the order, it is sent to the clerk. The clerk then enters the judgment. The member said that, under the new Unit 2 system, attorneys would apparently not be notified if the judge had signed the order and the clerk had filed the judgment or whether there were problems with either the draft order or judgment. A member said the attorney would have to check Odyssey to see if the order and judgment had been filed.
A member said that attorneys typically file proposed orders and judgments with a cover letter requesting to be notified when the final order and judgment are filed. The member asked whether such a request would be ignored under the new Unit 2 system. A member said that Unit 2 would comply with the rules and not send out any notice. A member
said that attorneys would then be required to monitor Odyssey every day when they had matters pending before the court.
A member asked what would happen if the attorney sends an extra copy of the proposed order and judgment to the clerk, requesting that a signed copy be returned. A member said that was a different issuethat the policy change involved the clerk no longer sending out notice of entry to the parties.
A member said that Unit 2 was attempting to separate the duties of the clerk's office and the judicial staff. The clerk's office said that it no longer had time to send out notice of entry, so the judicial staff was going to take over this job. The problem with this proposal was that sending out individual notice of entry on default judgments would overwhelm the judicial staff. The member said that Unit 2 made the decision to follow the rule, which does not require the court to send out notice of entry. The Unit 2 judges have agreed, however, that if a particular judge wrote an order, that judge's staff would send out notice and provide a copy to the parties. The judicial staff, however, will not send notice that a judge had signed something that the parties had sent in. Parties and attorneys will have to check Odyssey to see if an order has been signed or a judgment entered.
A member said that this arrangement does not address the issue of Rule 58's requirement that a copy of the judgment be attached to notice of entry of judgment that the attorney serves and files. The member said an attorney following this procedure wants the clerk to scan in the notice, the order, and the judgment when this package is filed. A member said that attorneys and parties are entitled to follow this procedure under the rule, but that the proposed amendment to Rule 58 would allow parties to simply provide a general description and judgment date rather than attaching the judgment itself to the notice of entry. A member said that following this option would satisfy the clerks because it would reduce the number of duplicated items scanned into the Odyssey file.
A member said that, under this option, the attorney could state in the notice that a copy of the judgment was served on the parties on a given date and provide a general description of the judgment rather than filing the judgment itself. A member said that following this procedure has always been an option under the rule. A member said that the clerks scan the judgment into the system when they enter it and they do not want to scan the judgment in again when an attorney files the required notice of entry.
A member said that attorneys want the judgment served with the notice of entry to be filed with the notice of entry because this provides proof of what the attorney served on the other parties. A member said it is necessary to file these items to prove that the other party received the order and the judgment. A member said that filing a notice with a general
description of the judgment is not a 100 percent accurate way to establish what was served on the other party. A member said that filing a statement that the opposing party was served with a copy of the judgment entered on a specified date in the specified case (along with a general description of the judgment) would comply with the rule.
A member questioned how much detail a party would have to provided to describe the judgment that was served. The member said a divorce judgment is so complicated that providing a description would be inadequate and filing the judgment a simpler option.
A member said that the problem with scanning in a second judgment is docketing the second judgment and then having two judgments in the case. A member said that the clerks should just not docket the second judgment but instead list the document as "Notice of Entry of Judgment (with attachments)." The member said this would eliminate the problem of having two judgments in the file.
A member said the federal court issues the order and the time for appeal begins to run at that time. The member said the federal court sends parties electronic notice that the order has been entered. The member said with the state now having electronic filing, and lawyers expected to be aware of when a judgment has been entered and gone online, it makes little sense to have the prevailing party serve a notice of entry. The member said the notice of entry requirement is outdated.
A member said the practice of serving and filing the notice of entry of judgment with an attached copy of the judgment has worked for a long time in North Dakota. The member said that the clerks and the people who run the Odyssey system need to find a way to adjust to this longstanding practice rather than expecting attorneys to drop the practice.
A member said the scanning protocols for the Odyssey system require that all documents be scanned in and docketed separately. The member said this is why a judgment attached to a notice of entry will show up as a second judgment on the docket. A member said that the time consumed by scanning of the second judgment is not necessarily a problem if only contested cases are considered, but adding in default collection actions means that clerks have a heavy workload with "second judgments."
A member asked whether Odyssey could change its protocol and not scan in or docket the attached second judgment. A member said this question could be submitted to the working group.
A member said not getting notice when a judgment is entered from the clerk will create problems for attorneys. The member said attorneys typically have more than one case
pending and will need to give someone the job of just watching Odyssey to keep up to date with what the court is doing.
A member said the clerk cannot reject a notice of entry with attached judgment for filing but that they would prefer that the parties use another option. A member replied that some clerks were scanning in just the notice of entry and discarding the judgment. A member said that a clerk had called and given instructions that the notice of entry should not be sent in with the judgment. The member said the office had changed its procedure to send in the notice of entry with a description of the judgment in response to this request.
A member said that there are many complex situations, especially when there are multiple parties in a case and some parties are dismissed on summary judgment, where the option of sending in a notice of entry with a description of the judgment is inadequate. The member said that summarizing a technical judgment or a divorce case judgment is a difficult task inviting mistakes.
A member suggested that the issue should be sent to the Odyssey group to figure out how to deal with second judgments filed with the notice of entry.
The Chair noted that there was no motion on the floor to adopt the proposed amendments and asked whether the Committee wanted to go forward with the proposals.
Mr. Plambeck MOVED to amend Rule 58 to delete subdivision (b) at lines 13-21 on page 178 to eliminate the notice of entry requirement. Judge McLees seconded.
A member said attorneys would need to continually monitor Odyssey to check whether a judgment had been entered. A member responded that the appeal clock starts running in the federal system when the judgment is entered. A member replied that the federal courts send out electronic notice of entry in all matters.
A member said that eliminating the notice of entry of judgment requirement might be a good idea but that staff should research it first to determine whether there might be problems. The consensus of the Committee was that staff should conduct this research so that the Committee could thoughtfully consider the question in the future.
A member said if the court gave notice of entry when a judgment was signed in all circumstances then eliminating the Rule 58 notice of entry requirement would be acceptable. A member said that the courts should send emails to the parties when judgments or orders are entered. A member said that federal courts do this and it works well. A member said that in federal court parties file electronically and when the court takes any action parties receive
notice electronically. A member said the Odyssey file and serve system that is in progress could provide similar service.
The motion FAILED.
Judge McCullough MOVED to send a letter to the Court Technology Committee asking for comment on whether it is possible to make some of the changes discussed by the Committee. Judge Herauf seconded.
A member requested that the letter include the suggestion that, when a clerk receives a notice of entry of judgment with an attached copy of the judgment, that the item be docketed as Notice of Entry of Judgment with attachment, with the notice and the judgment copy scanned in.
A member said that one problem with Odyssey is that only one document can be opened at a time and there is no way to find out how far into the document an exhibit or attachment might be, if these are not included as a separate document. This is why all documents are scanned in separately.
A member said that Court Technology should also be asked whether it would be possible to send out an automatic notification of entry of orders and judgments to give parties and attorneys notice that they should be looking the item up on Odyssey.
Staff was instructed to determine what all the judicial units are doing in regard to sending notice of entry to parties
RULE 56, N.D.R.Civ.P., SUMMARY JUDGMENT (PAGES 183-204 OF THE AGENDA MATERIAL)
Staff explained that Fed.R.Civ.P. 56 had been amended, effective December 1, 2010, to improve and standardize the procedures for presenting and deciding summary-judgment motions in federal court. Staff presented proposed amendments to N.D.R.Civ.P. 56, modeled after the federal amendments, for the Committee's consideration.
The Committee declined to take action on adopting the proposed changes to Rule 56.
The meeting adjourned at approximately 1:30 p.m. on September 30, 2011.
Michael J. Hagburg