RULE 3.3. DISCOVERY AND SUBPOENAS.

Obsolete Date: 7/1/1999

A. Oaths. Any member of the board or of a hearing body in matters before it, and counsel in matters under investigation, may administer oaths and affirmations.

B. Subpoenas.

(1) Counsel, before any hearing or for a hearing and in accordance with Rule 45 of the North Dakota Rules of Civil Procedure, may compel by subpoena the attendance of witnesses, including the lawyer, and the production of pertinent books, papers, and documents. A lawyer, under Rule 45 of the North Dakota Rules of Civil Procedure, may compel by subpoena the attendance of witnesses and the production of pertinent books, papers, and documents before a hearing body after formal disciplinary proceedings are instituted.

(2) Subpoenas issued by counsel during the course of an investigation must clearly indicate on their face that the subpoenas are issued in connection with a confidential investigation under these rules and that it is regarded as contempt of court or grounds for discipline under these rules for a person subpoenaed to breach the confidentiality of the investigation. It is not a breach of confidentiality for a person subpoenaed to consult with an attorney.

(3) The district court of the district in which the attendance or production is required may, upon proper application, enforce the attendance and testimony of any witnesses and the production of any documents subpoenaed.

(4) Any attack on the validity of a subpoena issued under these rules must be heard and determined by the hearing body before which the matter is pending or by the court in which enforcement of the subpoena is being sought.

C. Discovery Limited. For 60 days following service of the petition in formal proceedings, counsel and the lawyer are entitled to reciprocal discovery, pursuant to the North Dakota Rules of Civil Procedure, of all matters not privileged. An extension may be granted by the chair of the board only upon a showing of good cause. Disputes concerning the scope and other aspects of discovery must be determined by the hearing body before which the matter is pending. All discovery orders by the hearing body are interlocutory and may not be appealed before entry of the final order.

D. Witness Fees. Witness fees and mileage are the same as those provided for proceedings in the district court.

E. Reciprocal Enforcement. Whenever a subpoena is sought in this state under the laws of another jurisdiction for use in lawyer discipline or disability proceedings, the chair of the board, upon petition, may issue a subpoena as provided in this section to compel the attendance of witnesses and production of documents.