Changes to Rules of Civil Procedure, Evidence, Court effective March 1 Wednesday, February 27, 2019

On March 1, amendments to the Rules of Civil Procedure, Evidence and Court become effective.  Here is an explanation of these upcoming changes.

See the details of the March 1 rule amendments here.

North Dakota Rules of Civil Procedure

Rule 56 - Summary Judgment

Subdivision (c) was amended to establish a deadline for serving a motion, a deadline for a reply brief and length limits for principal, answer, and reply briefs.

Prior to this amendment, reply briefs were not mentioned in Rule 56, although they have long been submitted as part of the summary judgment process. A Joint Procedure Committee member proposed that the committee consider adding a deadline for reply briefs based on the deadline in the U.S. District Court's local rules. After discussion by the committee and consideration by the Supreme Court, new language was adopted for the rule providing that “[t]he moving party has 14 days to serve and file a reply brief.”

During discussion of the reply brief deadline, the committee decided that there should also be a pretrial cutoff for submission of a summary judgment motion.  Language was added to the rule requiring that dispositive motion documents “be filed at least 90 days before the day set for trial and 45 days before the day set for the hearing unless otherwise ordered.”

Another issue that came up during committee discussion was the fact that the rule contained no length limits for summary judgment briefs.  Committee members said that summary judgment briefs could become quite lengthy – at times, more than 100 pages – and the committee decided to propose brief length limits based on appellate brief word count.

During its discussion of length limits for appellate briefs, however, the Supreme Court decided to eliminate word count as a way to limit brief volume.  The Court therefore amended the proposed length limits in Rule 56 to match appellate brief page limits.

Under the amendments, “[a] principal brief or answer brief may not exceed 38 pages and a reply brief may not exceed 12 pages.” Parties may request the court to enlarge the page length limit but this must be done before the deadline to submit the brief.

North Dakota Rules of Evidence

Rule 803 - Exceptions to the Rule Against Hearsay

Paragraph (16) was amended to allow application of the ancient document exception only to documents prepared before January 1, 1998. This follows a December 2017 amendment to the federal rule.

Under the existing exception, a document at least 20 years old was presumed authentic and all of the statements in the document were assumed to be reliable enough to be admissible despite being hearsay. The federal committee decided to revise the exception because it would soon become applicable to a vast number of electronic documents.

The federal committee chose 1998 as the new cutoff date because it will retain the exception for very old documents while encouraging better preservation of reliable electronically stored information created after 1998, which may be admitted under other rules.

Rule 902 - Evidence that is Self-Authenticating

New paragraphs (13) and (14) were adopted to provide a means for self-authentication of designated electronic material.

In December 2017, the federal rule was amended to add the new subdivisions allowing certain electronic evidence to be authenticated by a certification of a qualified person in lieu of that person's testimony at trial.

New subdivision (13) allows self-authentication of machine-generated information (such as a web page) upon a submission of a certificate prepared by a qualified person. New Rule 902(14) provides a similar certification procedure for a copy of data taken from an electronic device, media, or file.

The federal committee stated that the new subdivisions are analogous to Rule 902(11) and 902(12), which permit a foundation witness to establish the authenticity and admissibility of business records by way of certification, with the burden of challenging authenticity on the opponent of the evidence.

North Dakota Rules of Court

Rule 3.1 - Pleadings

A new subdivision (i) was adopted to consolidate the rule's requirements related to the preparation and filing of paper documents in a single place.

The amendment was proposed because court staff thought that it was confusing to have the rule's general requirements for documents mixed in with requirements that apply only to paper documents, especially given that only specified parties now are allowed to file paper documents.

Rule 3.5 - Electronic Filing in District Courts

Subdivision (b) was amended to exclude documents that consist of a single paragraph from the paragraph numbering requirement.

Appendix K. Rule 3.5 Electronic Filing Requirements

Subdivision (c) was amended to consistent with the amendments to Rule 3.5.

The commission indicated that the rule amendment was necessary so that the state can use Interstate Compact Rule 5.101-2, which provides a process for dealing with a violation in a state where a North Dakota probationer is incarcerated for new crime conviction.