RULE 513. COLLABORATIVE LAW PRIVILEGE
1 (a) Privilege Against Disclosure for Collaborative Law Communication;
2 Admissibility; Discovery.
3 (1) "Collaborative law communication" is defined in N.D.R.Ct. 8.10
5 (2) A collaborative law communication is privileged, not subject to
6 discovery, and not admissible in evidence.
7 (3) In a proceeding, the following privileges apply:
8 (A) A party may refuse to disclose, and may prevent any other person from
9 disclosing, a collaborative law communication.
10 (B) A nonparty participant may refuse to disclose, and may prevent any
11 other person from disclosing, a collaborative law communication of the nonparty
13 (4) Evidence or information that is otherwise admissible or subject to
14 discovery does not become inadmissible or protected from discovery solely
15 because of its disclosure or use in a collaborative law process.
16 (b) Waiver and Preclusion of Privilege.
17 (1) A privilege under Rule 513(a) may be waived in a
record document or
18 orally during a proceeding if it is expressly waived by all parties and, in the case
19 of the privilege of a nonparty participant, it is also expressly waived by the
20 nonparty participant.
21 (2) A person that makes a disclosure or representation about a collaborative
22 law communication which prejudices another person in a proceeding may not
23 assert a privilege under Rule 513(a), but this preclusion applies only to the extent
24 necessary for the person prejudiced to respond to the disclosure or representation.
25 (c) Limits of Privilege.
26 (1) There is no privilege under Rule 513 (a) for a collaborative law
27 communication that is:
28 (A) available to the public under N.D. Sup. Ct. Admin.R. 41 or made
29 during a session of a collaborative law process that is open, or is required by
30 law to be open, to the public;
31 (B) a threat or statement of a plan to inflict bodily injury or commit a crime
32 of violence;
33 (C) intentionally used to plan a crime, commit or attempt to commit a crime,
34 or conceal an ongoing crime or ongoing criminal activity; or
35 (D) in an agreement resulting from the collaborative law process, evidenced
36 by a document signed by all parties to the agreement.
37 (2) The privileges under Rule 513(a) for a collaborative law communication
38 do not apply to the extent that a communication is:
39 (A) sought or offered to prove or disprove a claim or complaint of
40 professional misconduct or malpractice arising from or related to a collaborative
41 law process; or
42 (B) sought or offered to prove or disprove abuse, neglect, abandonment, or
43 exploitation of a child or adult, unless the child protective services agency or adult
44 protective services agency is a party to or otherwise participates in the process.
45 (3) There is no privilege under Rule 513(a) if a tribunal finds, after a
46 hearing in camera, that the party seeking discovery or the proponent of the
47 evidence has shown the evidence is not otherwise available, the need for the
48 evidence substantially outweighs the interest in protecting confidentiality, and the
49 collaborative law communication is sought or offered in:
50 (A) a court proceeding involving a crime; or
51 (B) a proceeding seeking rescission or reformation of a contract arising out
52 of the collaborative law process or in which a defense to avoid liability on the
53 contract is asserted.
54 (4) If a collaborative law communication is subject to an exception under
55 Rule 513(c)(2) or (3), only the part of the communication necessary for the
56 application of the exception may be disclosed or admitted.
57 (5) Disclosure or admission of evidence excepted from the privilege under
58 paragraph Rule 513(c)(2) or (3) does not make the evidence or any other
59 collaborative law communication discoverable or admissible for any other
61 (6) The privileges under Rule 513(a) do not apply if the parties agree in
62 advance in a signed document, or if a record of a proceeding reflects
63 agreement by the parties, that all or part of a collaborative law process is not
64 privileged. This paragraph does not apply to a collaborative law communication
65 made by a person that did not receive actual notice of the agreement before the
66 communication was made.
67 EXPLANATORY NOTE
68 Rule 513 was adopted, effective March 1, 2016.
69 Sources: Joint Procedure Committee Minutes of January 29-30, 2015, page
70 6; September 25-26, 2014, pages 2-3; April 24-25, 2014, pages 4-10; April 25-26,
71 2013, pages 23-26.
72 Cross Reference: N.D.R.Ct . 8.10 (Collaborative Law); N.D. Sup. Ct.
73 Admin. R. 41 (Access to Court Records).