Joint Procedure Committee Meeting

Scheduled on Thursday, January 19, 1984 @ 9:00 AM

MINUTES OF MEETING

Joint Procedure Committee

January 19-20, 1984

CALL TO ORDER

The meeting was called to order at 9:00 a.m., January 19, 1984, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Present

Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. Frank J. Kosanda
Hon. Lawrence A. Leclerc
Hon. William S. Murray
Hon. James H. O'Keefe
Hon. Kirk Smith
Mr. Leonard H. Bucklin
Mr. Ward M. Kirby
Professor Larry Kraft
Ms. Beryl Levine
Mr. LeRoy A. Loder
Mr. Herbert L. Meschke
Mr. David L. Peterson

Absent

Hon. Robert C. Heinley
Professor Robert Vogel
Mr. James L. Lamb
Mr. Raymond R. Rund
Mr. Dean Winkjer

RULE 52, NDRCivP

Justice Vernon R. Pederson appeared before the Committee to present material on his proposal to repeal Rule 52, NDRCivP, and replace it with a Rule 52.1, NDRCivP.

Judge Burdick MOVED to adopt the federal amendments to Rule 52(a) as they appear on page 171 of the agenda, with the second word "of" on line 12 deleted.

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Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum of decision is filed, it Itwill be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear therein in an opinion or memorandum of decision filed by the court. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).

Judge O'Keefe seconded the motion.

Mr. Peterson MOVED a substitute motion to adopt the following language:

In all actions tried upon the facts without a jury or with an advisory jury the court shall state its conclusions of law orally in open court following the close of the evidence or issue an opinion or memorandum of decision containing its conclusions of law.

Judge Glaser seconded the motion.

RECESS

The committee recessed to 1:00 p.m.

CALL TO ORDER

The meeting was called to order at 1:00 p.m., January 19, 1984, by Justice Paul M. Sand, Chairman.

ROLL CALL

Present

Hon. Eugene A. Burdick

Hon. Gerald G. Glaser
Hon. Frank J. Kosanda
Hon. Lawrence A. Leclerc
Hon. William S. Murray
Hon. James H. O'Keefe
Hon. Kirk Smith
Mr. Leonard H. Bucklin
Mr. Ward M. Kirby
Professor Larry Kraft
Ms. Beryl Levine
Mr. LeRoy A. Loder
Mr. Herbert L. Meschke
Mr. David L. Peterson

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Absent

Hon. Robert C. Heinley
Professor Robert Vogel
Mr. James L. Lamb
Mr. Raymond R. Rund
Mr. Dean Winkjer

RULE 52, NDRCivP

The question was on the substitute motion of Mr. Peterson, seconded by Judge Glaser, which motion LOST.

The question was on the motion of Judge Burdick, seconded by Judge O'Keefe, which motion CARRIED. Rule 52, NDRCivP, as amended, now reads as follows:

Findings by the Court

(a) EFFECT. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon, and direct the entry of the appropriate judgment; and in granting or refusing temporary injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).

(b) Amendment. Upon motion of a party made not later than 10 days after notice of entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59. When findings of fact are made in

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actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the district court an objection to such findings or has made a motion to amend them or a motion for judgment.

RULE 35, NDRAppP

Judge Burdick MOVED to adopt the following amendment to Rule 35, NDRAppP:

(b) If the trial court fails to make any finding of fact necessary to support its conclusion of law under Rule 52(a), NDRCivP, the supreme court, on review, may (i) regard the requisite finding as having been made if it is supported by evidence viewed in a light most favorable to the omitted finding; (ii) dismiss any claim or defense for which the requisite finding cannot be made, or (iii) order a new trial as may be appropriate.

Judge Glaser seconded the motion. Motion CARRIED.

The staff was instructed to integrate the above amendment into present NDRAppP 35.

RULE 29(c), NDRCrimP

Judge O'Keefe MOVED the staff study all of Rule 29 and put it on the agenda of our next meeting.

Judge Burdick seconded the motion. Motion CARRIED.

RULE 59, NDRCivP

Mr. Peterson MOVED to amend the explanatory note to Rule 59 to add the following language at the end of line 30 of the present note:

The last sentence of subdivision (d) does not require a hearing on a motion for a new trial and must be read in conjunction with NDROC 3.2.

Mr. Bucklin seconded the motion.

Judge Burdick MOVED a substitute motion for staff to reconcile Rules 6(d) and 59(d) and (e), NDRCivP, and Rules 42 and 45(d), NDRCrimP, and any other applicable rules with Rule 3.2(c), NDROC. Judge Smith seconded the motion. Motion CARRIED.

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RULE 46(g)(3), NDRCrimP

Judge Burdick MOVED to amend Rule 46(g)(3), NDRCrimP, by deleting the word "district" and inserting in lieu thereof the words "any appropriate" in the second sentence. Judge Kosanda seconded the motion. Motion CARRIED.

RELEASE FROM CUSTODY

(a) Release Prior to Trial.

(1) Release in Non-capital Cases Prior to Trial.

(i) Any person charged with an offense, other than an offense punishable by death, shall at his initial appearance before a magistrate, be ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the magistrate, unless the magistrate determines, in the exercise of his discretion, that release will not reasonably assure the appearance of the person as required. If that determination is made, the magistrate, either in lieu or of in addition to the above methods of release, shall impose the first of the following conditions of release which will reasonably assure the appearance of the person for trial or, if no single condition gives that assurance, two or more of the following conditions:

(A) Place the person in the custody of a designated person or organization agreeing to supervise him;

(B) Place restrictions on the travel, association, or place of abode of the person during the period of release;

(C) Require the execution of an appearance bond in a specified amount and the deposit with the court, of cash or other security as directed in an amount not to exceed 10 per centum of the amount of the bond, which deposit shall be returned upon the performance of the conditions of release;

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(D) Require the execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu thereof; or

(E) Impose any other conditions deemed reasonably necessary to assure appearance as required, including a condition requiring the return of the person to custody after specified hours.

(ii) In determining which conditions of release will reasonably secure appearance, the magistrate, on the basis of available information, shall take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear voluntarily at court proceedings.

(iii) A magistrate authorizing the release of a person under this section shall issue an appropriate order containing a statement of the conditions imposed, if any, shall inform such person of the penalties applicable to violations of the conditions of his release and shall advise him that a warrant for his arrest will be issued immediately upon any violation.

(iv) A person for whom conditions of release are imposed and who after 48 hours from the time of the release hearing continues to be detained as a result of his inability to meet the conditions of release, shall, upon request, be entitled to have the conditions reviewed by the magistrate.

(v) A magistrate ordering the release of a person on any condition specified in this section may at any time amend his order to impose additional or different conditions of release.

(vi) Information stated in, or offered in connection with, an order entered pursuant to this section need not conform to the rules pertaining to the admissibility of evidence in a court of law.

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(vii) this section shall not be construed to prevent the disposition of any case or class of cases by forfeiture of collateral security where disposition is authorized by the court.

(2) Release in Capital Cases. A person who is charged with an offense punishable by death, shall be treated in accordance with the provisions of Subsection (a)(1) unless the court or judge has reason to believe that one or more conditions of release will not reasonably assure that the person will appear for hearing or trial. If the magistrate has reason to believe the person will not appear, the person may be ordered detained.

(b) Amendment of Conditions of Release by Other Magistrate. A person who is detained, or whose release on a condition requiring him to return to custody after specified hours is continued, after review of his application pursuant to Subsection (a)(1)(iv) or (a)(1)(v) by a magistrate other than a magistrate of the trial court in the jurisdiction in which the offense was committed, may apply to the latter magistrate to amend the order. Such motion shall be determined promptly.

(c) Release During Trial. A person released before trial shall continue on release during trial under the same terms and conditions as were previously imposed, unless the court determines that other terms and conditions or termination of release are necessary to assure his presence during the trial or to assure that his conduct will not obstruct the orderly and expeditious progress of the trial.

(d) Release Pending Appeal from a Judgment of Conviction. Application for release after a judgment of conviction shall be made in the first instance in the trial court. If the trial court refuses release pending appeal, or imposes conditions of release, the court shall state in writing the reasons for the action taken. Thereafter, if an appeal is pending, a motion for release, or for modification of the conditions of release, pending review may be made to the supreme court or to a judge thereof. The motion shall be determined promptly upon such papers, affidavits, and portions of the record as the parties shall present and after reasonable notice to the appellee. The supreme court or a judge thereof may order the release of the appellant pending disposition of the motion.

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(e) Release of Material Witnesses. If it appears by affidavit that the testimony of a person is material in any criminal proceeding and it is shown that it may become impracticable to secure his presence by subpoena, a magistrate may issue a warrant for his detention and impose conditions of release pursuant to Subsection (a)(1). A material witness shall not be detained because of inability to comply with any condition of release if the testimony of the witness can adequately be secured by deposition, and further detention is not necessary to prevent a failure of justice. Release may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to these Rules.

(f) Justification of Sureties. Every surety, except a corporate surety which is approved as provided by law, shall justify by affidavit and may be required to describe in the affidavit the property by which he proposes to justify and the encumbrances thereon, the number and amount of other bonds and undertakings for bail entered into by him and remaining undischarged and all his other liabilities. A bond shall not be approved unless the surety thereon appears to be qualified.

(g) Forfeiture.

(1) Declaration. If there is a breach of condition of a bond, the court shall declare a forfeiture of the bail.

(2) Setting Aside. The court may direct that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture.

(3) Enforcement. If a forfeiture has not been set aside, the court on motion shall enter a judgment of default and execution may issue thereon. By entering into a bond the obligors submit to the jurisdiction of any appropriate court and irrevocably appoint the clerk of the court as their agent upon whom any papers affecting their liability may be served. Their liability may be enforced on motion without the necessity of an independent action. The motion and such notices of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the obligors at their respective last-known addresses.

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(4) Remission. After entry of judgment, the court may remit it in whole or in part under the conditions applying to the setting aside of forfeiture in paragraph (2) of this Subdivision.

(h) Exoneration. If the condition of the bond has been satisfied or the forfeiture thereof has been set aside or remitted, the court shall exonerate the obligors and release any bail. A surety may be exonerated by a deposit of cash in the amount of the bond or by a timely surrender of the defendant into custody.

(i) Supervision of Detention Pending Trial. The court ordering defendants or witnesses detained shall exercise supervision over the detention of those defendants and witnesses pending trial, for the purpose of eliminating all unnecessary detention.

RECESS

The committee recessed for ten minutes.

NEXT MEETING

The committee set the next meeting date for April 26-27, 1984, in the Capitol building, the meeting to commence at 9:00 a.m. on the 26th.

APPROVAL OF MINUTES

Judge Leclerc MOVED that the minutes of the October 20-21, 1983, meeting be approved as submitted. Judge Kosanda seconded the motion. Motion CARRIED.

RULE 11.3, NDROC

Judge Leclerc MOVED that the Rule 11.3, North Dakota Rules of Court, be amended as proposed:

No agreement or consent between the parties or their attorneys with respect to proceedings in court is binding, in case of a dispute as to its terms, unless reduced to writing, and, signed by the parties or their respective attorneys and filed with the court, or made in open court and read into the record of the proceedings.

Judge Burdick suggested that the staff attorney research the matter of stipulations affecting the court and submit his findings to the next committee meeting.

The motion to amend Rule 11.3, NDROC, LOST for lack of a second.

ADJOURNMENT

Judge Glaser MOVED to adjourn to 9:00 a.m. January 21, 1984. Judge Kosanda seconded the motion. Motion CARRIED.

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CALL TO ORDER

The meeting was called to order at 9:00 a.m., January 20, 1984, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Present

Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. Frank J. Kosanda
Hon. Lawrence A. Leclerc
Hon. William S. Murray
Hon. Kirk Smith
Mr. Ward M. Kirby
Professor Larry Kraft
Ms. Beryl Levine
Mr. LeRoy A. Loder
Mr. Herbert L. Meschke
Mr. David Peterson (11:30)
Mr. Dean Winkjer

Absent

Hon. Robert C. Heinley
Hon. James H. O'Keefe
Professor Robert Vogel
Mr. Leonard H. Bucklin
Mr. James L. Lamb
Mr. Raymond R. Rund

RULE 4, NDRAppP

Mr. Loder MOVED to table discussion of Rule 4, NDRAppP. The motion was seconded by Judge Burdick. Motion LOST.

Mr. Meschke MOVED to adopt the amendment proposals submitted in alternative number 2, except that we do not include the 90-days on line 4 and do not delete the language in lines 39 through 48.

(a) Appeals in Civil Cases.

(1) In a civil case the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 60 days of after the date of the service of notice of entry of the judgment or order appealed from. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this subdivision, whichever period last expires. Except as provided in subdivision (a)(2) of this rule, a notice of

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appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day thereof.

(2) The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the trial court by any party pursuant to the North Dakota Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this subdivision commences to run and is to be computed from service of notice of the entry of any of the following orders upon a timely motion under such rules: (1) granting or denying a motion for judgment under Rule 50(b); (2) granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) granting or denying a motion under Rule 59 to alter or amend the judgment; or (4) denying a motion for a new trial under Rule 59. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above. No additional fees shall be required for such filing.

Upon a showing of excusable neglect, the trial court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the trial court shall deem appropriate.

(b) Appeals in Criminal Cases. In a criminal case the notice of appeal by a defendant shall be filed with the clerk of the trial court within 10 days after the entry of the judgment or order appealed from. A notice of appeal filed after the announcement of a decision, sentence, or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof. If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of an order denying the motion. A motion for a new trial based on the ground of newly discovered evidence will similarly extend the time for appeal from a judgment of conviction if the motion is made before or within 10 days after entry of the judgment. When an appeal by the state is authorized by statute, the notice of appeal shall be filed with the clerk of the trial court within 30 days after the entry of the judgment or order appealed from. A judgment or order is entered within the meaning of this subdivision when it is entered in the criminal docket. Upon a showing of excusable neglect the trial court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.

Judge Leclerc seconded the motion. Motion LOST.

Judge Leclerc MOVED to adopt the amendment proposals submitted in alternative number 3.

(a) Appeals in Civil Cases. In a civil case the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 60 90 days of the date of the service of notice of entry of the judgment or order appealed from. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this subdivision, whichever period last expires.

The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the trial court by any party pursuant to the North Dakota Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this subdivision commences to run and is to be computed from service of notice of the entry of any of the following orders upon a timely motion under such rules: (1) granting or denying a motion for judgment under Rule 50(b); (2) granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an

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alteration of the judgment would be required if the motion is granted; (3) granting or denying a motion under Rule 59 to alter or amend the judgment; or (4) denying a motion for a new trial under Rule 59.

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Ms. Levine seconded the motion.

Judge Burdick MOVED a substitute motion to amend line 3 to read "with the clerk of the trial court within 60 days after the"

with a recommendation to the Legislature that it repeal the existing statute. Mr. Loder and Judge Smith seconded the motion. Motion CARRIED.

APPEAL - WHEN TAKEN

(a) Appeals in Civil Cases. In a civil case the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 60 days after the date of the service of notice of entry of the judgment or order appealed from. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this subdivision, whichever period last expires.

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after the entry of an order denying the motion. A motion for a new trial based on the ground of newly discovered evidence will similarly extend the time for appeal from a judgment of conviction if the motion is made before or within 10 days after entry of the judgment. When an appeal by the state is authorized by statute, the notice of appeal shall be filed with the clerk of the trial court within 30 days after the entry of the judgment or order appealed from. A judgment or order is entered within the meaning of this subdivision when it is entered in the criminal docket. Upon a showing of excusable neglect the trial court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.

RULE 7, NDRCivP

Judge Leclerc MOVED to adopt the proposed amendment to Rule 7, NDRCivP, which inserts a new subsection (3) to subdivision (b), as follows:

All motions must be signed in accordance with Rule 11.

Professor Kraft seconded the motion. Motion CARRIED.

PLEADINGS ALLOWED - FORM OF MOTIONS

(a) Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.

(b) Motions and Other Papers.

(1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief sought or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the

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hearing of the motion.

(2) The rules applicable to captions and other matters of form of pleadings apply to all motions and other papers provided for by these rules.

(3) All motions must be signed in accordance with Rule 11.

(4) A motion to vacate or modify a provisional remedy shall have preference over all other motions.

(c) Demurrers, Pleas, Etc., Abolished. Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used.

RULE 11, NDRCivP

Judge Leclerc MOVED to adopt the proposed amendments to Rule 11, NDRCivP:

SIGNING OF PLEADINGS, MOTIONS

AND OTHER PAPERS; SANCTIONS

Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after

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the omission is called to the attention of the pleader or movant. or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false and the action may proceed as though the pleading had not been served. For a wilful violation of this rule an attorney may be subjected to appropriate disciplinary action. Similar action may be taken if scandalous or indecent matter is inserted. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.

with the further amendment:

Line 35: after the word "motion" insert "of a party"; delete the word "initiative"; change "shall" to "may".

Line 35 would then read: "motion of a party of upon its own motion, may impose upon"

Professor Kraft seconded the motion.

Judge Burdick MOVED a substitute motion to change lines 23 through 26 to read:

"If a pleading, motion, or other paper is not signed, the court, upon motion of a party shall, and upon its own motion may, order the instrument to be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant."

and lines 33 through 35 to read as follows:

"If a pleading, motion or other paper is signed in violation of this rule, the court on action of a party shall or on its own motion may impose upon"

Judge Leclerc seconded the motion. Motion LOST.

Mr. Meschke MOVED a substitute motion to delete "may" and insert "shall" in the proposed language in line 35. Mr. Kirby seconded the motion. Motion CARRIED.

The question was then on the motion of Judge Leclerc, seconded by Professor Kraft. Motion CARRIED.

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Judge Leclerc voted "No" explaining that he voted against the motion because of problems which he has, which he had indicated earlier, that this language can be interpreted to require the judge to assert his objections improperly, which could result in the unnecessary use of the court's time and presence.

SIGNING OF PLEADINGS, MOTIONS

AND OTHER PAPERS; SANCTIONS

Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney, shall sign his pleading, motion, or other paper and state his address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion of a party or upon its own motion, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.

RULE 16, NDRCivP

Mr. Meschke MOVED to adopt the proposed amendments to Rule 16, NDRCivP.

RULE 16

Pretrial Procedure -- Formulating Issues

Pretrial Conferences; Scheduling, Management

(a) Pretrial Conferences; Objectives. In any action after issue is joined, the court in its discretion may, and upon written request of a party shall,

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direct the attorneys for the parties and any unrepresented parties to appear before it for a conference or conferences in advance of trial for such purposes as to consider

(1) expediting the disposition of the action;

(2) establishing early and continuing control so that the case will not be protracted because of lack of management;

(3) discouraging wasteful pretrial activities;

(4) improving the quality of the trial through more thorough preparation, and;

(5) facilitating the settlement of the case.

(b) Pretrial Conferences; Subjects to be Discussed. The participants at any conference under this rule may consider and take action with respect to

(1) the formulation and simplication of the issues, including the elimination of frivolous claims or defenses;

(2) the necessity or desirability of amendments to the pleadings;

(3) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence;

(4) The avoidance of unnecessary proof and of cumulative evidence;

(5) (4) the limitation of the number of expert identification ofwitnesses and documents, the need and schedule for filing and exchanging pretrial briefs, and the date or dates for further conferences and for trial;

(6) (5) The advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury;

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(7)the possibility of settlement or the use of extrajudicial procedures to resolve the dispute;

(8) the form and substance of the pretrial order;

(9) the disposition of pending motions;

(10) the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems; and

(11) (6) such other matters as may aid in the disposition of the action.

At least one of the attorneys for each party participating in any conference before trial must have authority to enter into stipulations and to make admissions regarding all matters that the participants may reasonably anticipate may be discussed.

(c) FINAL PRETRIAL CONFERENCE. Any final pretrial conference shall be held as close to the time of trial as reasonable under the circumstances. The participants at any such conference shall formulate a plan for trial, including a program for facilitating the admission of evidence. The conference must be attended by at least one of the attorneys who will conduct the trial for each of the parties and by any unrepresented parties.

(d) PRETRIAL ORDERS. After any conference held pursuant to this rule, an order must be entered reciting the action taken. This order controls the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference may be modified only to prevent manifest injustice.

(e) SANCTIONS.(i)If a party or party's attorney fails to obey a pretrial order, (ii) if no appearance is made on behalf of a party at a pretrial conference, (iii) if a party or party's attorney is substantially unprepared to participate in the conference, or (iv) a party or party's attorney fails to participate in good faith, the judge, upon motion or his own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B),(C),(D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing him or both to pay the reasonable expense incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.

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The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered; and which limits the issues for trial to those not disposed of by admissions or agreements of counsel, and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pretrial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to non jury actions or extend it to all actions. Upon failure of counsel to appear, the court shall have authority to grant a motion for dismissal or to proceed with the conference, as may be appropriate.

Judge Leclerc and Mr. Winkjer seconded the motion. Motion CARRIED.

Pretrial Conferences; Objectives

(a) In any action after issue is joined, the court in its discretion may, and upon written request of a party shall, direct the attorneys for the parties and any unrepresented parties to appear before it for a conference or conferences in advance of trial for such purposes

(1) expediting the disposition of the action;

(2) establishing early and continuing control so that the case will not be protracted because of lack of management;

(3) discouraging wasteful pretrial activities;

(4) improving the quality of the trial through more thorough preparation, and;

(5) facilitating the settlement of the case.

(b) Pretrial Conferences; Subjects to be Discussed. The participants at any conference under this rule may consider and take action with respect to

(1) the formulation and simplification of the issues, including the elimination of frivolous claims or defenses;

(2) the necessity or desirability of amendments to the pleadings;

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(4) The avoidance of unnecessary proof and of cumulative evidence;

(5) the limitation of the number of expert identification of witnesses and documents, the need and schedule for filing and exchanging pretrial briefs, and the date or dates for further conferences and for trial;

(6) The advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury;

(7) the possibility of settlement or the use of extrajudicial procedures to resolve the dispute;

(8) the form and substance of the pretrial order;

(9) the disposition of pending motions;

(11) such other matters as may aid in the disposition of the action.

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(e) SANCTIONS. (i) If a party or party's attorney fails to obey a pretrial order, (ii) if no appearance is made on behalf of a party at a pretrial conference, (iii) if a party or party's attorney is substantially unprepared to participate in the conference, or (iv) a party or party's attorney fails to participate in good faith, the judge, upon motion or his own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing him or both to pay the reasonable expense incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.

RULE 26, NDRCivP

Judge Kosanda MOVED to adopt the proposed amendments to Rule 26, NDRCivP, subject to style changes, and with the following further amendments:

Line 271: "the court on motion of a party shall or on its own motion may order the instrument to be".

Line 277: "on motion of a party or on its own motion"

GENERAL PROVISIONS GOVERNING DISCOVERY

(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise under subdivision (c) of this rule, the frequency of use of these methods is not limited.

(b) Scope of Discovery. Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

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(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

The frequency or extent of use of the discovery methods set forth in subdivision (a) shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation. The court may act upon its own initiative after reasonable notice or pursuant to a motion under subdivision (c).

. . . .

(g) SIGNING OF DISCOVERY REQUEST, RESPONSES, AND OBJECTIONS. Every request for discovery or response or objection thereto made by a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the request, response, or objection and state his address. The signature of the attorney or party constitutes a certification that he has read the request, response, or objection, and that to the best of his knowledge, information, and belief formed after a reasonable inquiry it is: (1) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (2) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (3) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and

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If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response or objection and a party shall not be obligated to take any action with respect to it until it is signed.

If a certification is made in violation of the rule, the court, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney's fee.

Judge Burdick seconded the motion. Motion CARRIED.

Mr. Kirby voted "no" because he is concerned about responsibility for the response language included in the amendment.

Ms. Levine also voted "no."

GENERAL PROVISIONS GOVERNING DISCOVERY

(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

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The frequency or extent of use of the discovery methods set forth in subdivision (a) must be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation. The court may act upon its own initiative after reasonable notice or pursuant to a motion under subdivision (c).

(2) Insurance Agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement.

(3) Trial Preparation - Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

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A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person, If the request is refused, the person may move for a court order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is

(A) a written statement signed or otherwise adopted or approved by the person making it, or

(B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

(4) Trial Preparation - Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

(ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this rule, concerning fees and expenses as the court may deem appropriate.

(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as

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exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(4)(A)(ii) and (b)(4)(B) of this rule; and (ii) with respect to discovery obtained under subdivision (b)(4)(A)(ii) of this rule the court may require, and with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(1) that discovery not be had;

(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;

(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;

(5) that discovery be conducted with no one present except persons designated by the court;

(6) that a deposition after being sealed be opened only by order of the court;

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(7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; or

(8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

(d) Sequence and Timing of Discovery. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:

(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to

(A) the identity and location of persons having knowledge of discoverable matters, and

(B) the identity of each person expected to be called as an expert witness at trail, the subject matter on which he is expected to testify, and the substance of his testimony.

(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which.

(A) he knows that the response was incorrect when made, or

(B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

(3) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.

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(f) Discovery Conference. At any time after an action has been filed the court may direct the attorneys for the parties to appear before it for a conference on the subject of discovery. The court shall do so upon motion by the attorney for any party if the motion includes:

(1) A statement of the issues as they then appear;

(2) A proposed plan and schedule of discovery;

(3) Any limitations proposed to be placed on discovery;

(4) Any other proposed orders with respect to discovery; and

(5) A statement showing that the attorney making the motion has made a reasonable effort to reach agreement with opposing attorneys on the matters set forth in the motion. Each party and his attorney are under a duty to participate in good faith in the framing of a discovery plan if a plan is proposed by the attorney for any party. Notice of the motion shall be served on all parties. Objections or additions to matters set forth in the motion shall be served not later than 10 days after service of the motion.

Following the discovery conference, the court shall enter an order tentatively identifying the issues for discovery purposes, establishing a plan and schedule for discovery, setting limitations on discovery, if any, and determining such other matters, including the allocation of expenses, as are necessary for the proper management of discovery in the action. An order may be altered or amended whenever justice so requires.

Subject to the right of a party who properly moves for a discovery conference to a prompt convening of the conference, the court may combine the discovery conference with a pretrial conference authorized by Rule 16.

(g) SIGNING OF DISCOVERY REQUEST, RESPONSES, AND OBJECTIONS. Every request for discovery or response or objection thereto made by a party represented by an attorney must be signed by at least one attorney of record in his individual name, whose address must be

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stated. A party who is not represented by an attorney shall sign the request, response, or objection and state his address. The signature of the attorney or party constitutes a certification that he has read the request, response, or objection, and that to the best of his knowledge, information, and belief formed after a reasonable inquiry it is: (1) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (2) no interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (3) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation. If a request, response, or objection is not signed, the court on motion of a party shall or on its own motion may order the instrument to be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response or objection and a party shall not be obligated to take any action with respect to it until it is signed.

If a certification is made in violation of this rule, the court, on motion of a party or its own motion, shall impose upon the person who made the certification, the party on whose behalf the request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney's fee.

ADJOURNMENT

Judge Leclerc MOVED to adjourn. Judge Kosanda seconded the motion. Motion CARRIED.

___________________________
Secretary

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