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Effective Date: 3/1/2016

(a) Privilege Against Disclosure for Collaborative Law Communication; Admissibility; Discovery.

(1) "Collaborative law communication" is defined in N.D.R.Ct. 8.10 (b)(1).
(2) A collaborative law communication is privileged, not subject to discovery, and not admissible in evidence.
(3) In a proceeding, the following privileges apply:
(A) A party may refuse to disclose, and may prevent any other person from disclosing, a collaborative law communication.
(B) A nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a collaborative law communication of the nonparty participant.
(4) Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely because of its disclosure or use in a collaborative law process.

(b) Waiver and Preclusion of Privilege.

(1) A privilege under Rule 513(a) may be waived in a document or orally during a proceeding if it is expressly waived by all parties and, in the case of the privilege of a nonparty participant, it is also expressly waived by the nonparty participant.
(2) A person that makes a disclosure or representation about a collaborative law communication which prejudices another person in a proceeding may not assert a privilege under Rule 513(a), but this preclusion applies only to the extent necessary for the person prejudiced to respond to the disclosure or representation.

(c) Limits of Privilege.

(1) There is no privilege under Rule 513 (a) for a collaborative law communication that is:
(A) available to the public under N.D. Sup. Ct. Admin.R. 41 or made during a session of a collaborative law process that is open, or is required by law to be open, to the public;
(B) a threat or statement of a plan to inflict bodily injury or commit a crime of violence;
(C) intentionally used to plan a crime, commit or attempt to commit a crime, or conceal an ongoing crime or ongoing criminal activity; or
(D) in an agreement resulting from the collaborative law process, evidenced by a document signed by all parties to the agreement.
(2) The privileges under Rule 513(a) for a collaborative law communication do not apply to the extent that a communication is:
(A) sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice arising from or related to a collaborative law process; or
(B) sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation of a child or adult, unless the child protective services agency or adult protective services agency is a party to or otherwise participates in the process.
(3) There is no privilege under Rule 513(a) if a tribunal finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown the evidence is not otherwise available, the need for the evidence substantially outweighs the interest in protecting confidentiality, and the collaborative law communication is sought or offered in:
(A) a court proceeding involving a crime; or
(B) a proceeding seeking rescission or reformation of a contract arising out of the collaborative law process or in which a defense to avoid liability on the contract is asserted.
(4) If a collaborative law communication is subject to an exception under Rule 513(c)(2) or (3), only the part of the communication necessary for the application of the exception may be disclosed or admitted.
(5) Disclosure or admission of evidence excepted from the privilege under paragraph Rule 513(c)(2) or (3) does not make the evidence or any other collaborative law communication discoverable or admissible for any other purpose.
(6) The privileges under Rule 513(a) do not apply if the parties agree in advance in a signed document, or if a record of a proceeding reflects agreement by the parties, that all or part of a collaborative law process is not privileged. This paragraph does not apply to a collaborative law communication made by a person that did not receive actual notice of the agreement before the communication was made.

Rule 513 was adopted, effective March 1, 2016.

Sources: Joint Procedure Committee Minutes of January 29-30, 2015, page 6; September 25-26, 2014, pages 2-3; April 24-25, 2014, pages 4-10; April 25-26, 2013, pages 23-26.

Cross Reference: N.D.R.Ct . 8.10 (Collaborative Law); N.D. Sup. Ct. Admin. R. 41 (Access to Court Records).

Effective Date Obsolete Date
03/01/2016 View