Joint Procedure Committee Meeting
Scheduled on Thursday, October 18, 1984 @ 10:00 AM
MINUTES OF MEETING
Joint Procedure Committee
October 18-19, 1984
CALL TO ORDER
The meeting was called to order at 9:00 a.m., October 18, 1984 by Justice Paul M. Sand, Chairman.
ATTENDANCE
Present:
Hon. Wallace D. Berning
Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Mr. Robert C. Heinley
Hon. Frank J. Kosanda
Hon. Lawrence A. Leclerc
Hon. William S. Murray
Hon. Kirk Smith
Mr. Ward M. Kirby
Professor Larry Kraft
Mr. LeRoy A. Loder
Mr. David L. Peterson
Mr. Ray Rund
Absent:
Hon. James H. O'Keefe
Mr. Leonard H. Bucklin
Mr. James L. Lamb
Ms. Beryl J. Levine
Mr. Herbert L. Meschke
Mr. Dean Winkjer
APPROVAL OF MINUTES
Judge Kosanda MOVED that the minutes of the June 21-22, 1984 meeting be adopted. Mr. Rund seconded the motion. Motion CARRIED.
CONTINUING LEGAL EDUCATION
Judge Burdick MOVED that a new application for CLE credit for attorney members of the Joint Procedure Committee be submitted, and that an appropriate rule change to bring that about be made if necessary. Professor Kraft seconded the motion. Motion CARRIED.
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PUBLICATION OF NORTH DAKOTA COURT RULES
It was the consensus of the members of the Joint Procedure Committee that a North Dakota Court Rules manual be published in 1985.
CONTEMPT
Judge Berning MOVED that the proposed revision of the contempt statute be submitted to the Legislature for amendment. Judge Leclerc seconded the motion.
Mr. Loder MOVED a substitute motion that chances in contempt proceedings be done by rule. Judge Burdick seconded the motion. The motion was WITHDRAWN.
Judge Burdick MOVED a substitute motion to reconsider the committee's previous action to recommend that this be sent to the Legislature for action. Mr. Loder seconded the motion. Motion LOST.
Mr. Peterson MOVED a substitute motion that we consider the draft for legislation presented by the staff counsel making changes which are necessary or desirable, if it can be done at this meeting, and then present it to the Legislature. Judge Smith seconded the motion. Motion CARRIED. Judge Leclerc voted no.
Judge Smith MOVED to consider lines 1 and 2 as appropriate for the bill draft. Judge Berning seconded the motion.
Judge Burdick MOVED that in line 1 "intentional" be changed to read "deliberate". Judge Leclerc seconded the motion. Motion LOST.
The question was on the motion of Judge Smith, which motion CARRIED.
Judge Burdick MOVED that lines 3 to 6 be changed to read: "Conduct of any person in or near the court's presence that obstructs the administration of justice or impairs the respect due the court." Mr. Loder seconded the motion. Motion CARRIED. Judge Leclerc voted no.
RECESS
The meeting recessed to 1:00 p.m., October 18, 1984.
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The meeting was called to order at 1:00 p.m., October 18, 1984 by Justice Paul M. Sand, Chairman.
ROLL CALL
The roll call was the same as for the morning session.
APPEALS FROM ADMINISTRATIVE AGENCIES
Daniel S. Kuntz, counsel for the Public Service Commission, appeared to explain the problems regarding appeals from an administrative agency to the district court.
After much discussion Mr. Kirby MOVED to table this item as it is a matter to be decided by the Legislature. Mr Loder seconded the motion. Motion CARRIED.
LOCAL RULES - EAST CENTRAL JUDICIAL DISTRICT
Mr. Peterson MOVED to not adopt the local rules as submitted by the East Central Judicial District:
STATE OF NORTH DAKOTA
East Central Judicial District
Revised Local Rule No. 1, Motions Practice
Pursuant to the directive of the Supreme Court dated March 8, 1983, former Local Rules No. 1 and No. 2 are hereby abrogated.
Pursuant to Rule 83 NDRCivP, Rule 57 NDRCrimP, and Rule 3.2 NDROC with explanatory note; Revised Local Rule No. 1 is hereby adopted as follows:
(a) Hearings on Motions. Parties initiating motions shall file with the Clerk of Court a notice of motion and notice of hearing in all cases setting forth the date, time, and place of hearing. The party initiating the motion shall notify and serve the opposing party of such motion.
(b) Submission on Briefs. A party may request the motion be submitted on briefs in lieu of a hearing. The party shall make the request in writing to the judge presiding over the motion.
(c) Exceptions. The following categories of applications, motions, and demands shall be submitted pursuant to Rule 3.2(c) NDROC and need not initially be noticed for hearing:
1. motions for change of venue
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2. Applications or motions for appointment of guardian ad litem
3. Motions for default judgment under Rule 55 NDRCivP except if the party against whom judgment by default is sought has appeared in the action.
4. Motions for reduction of sentence under Rule 35 NDRCrimP.
The effective date of this rule shall be February 15, 1984.
S/ NORMAN J. BACKES
Norman J. Backes
Presiding Judge
S/ JOHN 0. GARAAS
John O. Garaas
District Judge
S/ LAWRENCE A. LECLERC
Lawrence A. Leclerc
District Judge
S/ MICHAEL 0. McGUIRE
Michael 0. McGuire
District Judge
*NOTE: Orders to Show Cause are considered to be motions. Ex parte interim relief will be granted conditioned upon a formal motion hearing properly noticed.
STATE OF NORTH DAKOTA
East Central Judicial District
Local Rule No. 2
Domestic Relations
Pursuant to Rule 3.2 NDROC with explanatory note and Rule 43(e) NDRCivP, Local Rule No. 2 is hereby adopted as follows:
(a) Scope of Rules. This rule applies to hearings in all domestic relation matters, including pre and post trial motions in divorce, separation, and adult abuse cases that are scheduled to be heard by the court or its referee. This rule does not apply to trials.
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(b) Submission on Affidavits.
1. All evidence listed in matters in section (a) shall be submitted on affidavits. Affidavits may be supplemented by the affiant. Affidavits by or on behalf of the moving party and supplements thereto shall be served upon the opposing party and filed with the clerk 72 hours prior to the hearing.
2. Responsive affidavits shall be served on the opposing party and filed with the clerk no later than 24 hours prior to the hearing.
3. Cross examination of affiants will be allowed. Upon objection by the opposing party, no affidavit will be considered, if the affiant is not present at the hearing and available for cross examination.
(c) Direct Examination. Direct examination will be allowed only if leave of the court is obtained, to be secured upon written application for good cause shown, provided that such application is made at least 48 hours prior to the hearing.
(d) Time. Time herein shall be computed exclusive of weekends and legal holidays.
The effective date of this rule shall be February 15, 1984.
S/ NORMAN J. BACKES
Norman J. Backes
Presiding Judge
S/ JOHN 0. GARAAS
John 0. Garaas
District Judge
S/ LAWRENCE A. LECLERC
Lawrence A. Leclerc
District Judge
S/ MICHAEL 0. McGUIRE
Michael 0. McGuire
District Judge
Judge Burdick seconded the motion. Motion CARRIED, and the local rules were disapproved. Judge Leclerc and Judge Murray voted no; Mr. Rund abstained.
Judge Burdick MOVED that the committee action be communicated to the Supreme Court promptly. Mr. Peterson seconded the motion. Motion CARRIED.
RULE 52, NDRCivP
Mr. Peterson MOVED to reconsider the action of the Committee at its January 1984 meeting in adopting the amendments to Rule 52, North Dakota Rules of Civil Procedure. Judge Berning seconded the motion. Motion CARRIED.
Mr. Peterson MOVED to amend NDRCivP 52 by deleting the present language and inserting:
"In all actions tried upon the facts without a jury or with an advisory jury, the court should 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 Leclerc seconded the motion. Motion CARRIED. Judge Smith, Judge Burdick, Judge Berning and Judge Kosanda voted no,
FINDINGS BY THE COURT
In all actions tried upon the facts without a jury or with an advisory jury, the court should 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.
RULE 35, NDRAppP
Mr. Peterson MOVED to amend NDRAppP 35(b) by inserting the following language after the word "order" in line 2 of subsection (b):
"the supreme court shall affirm the judgment or order if it is in accordance with the law and there is substantial evidence to support it. The evidence shall be viewed in the light most favorable to the decision. Otherwise,"
to delete "affirm" in the next line; and to not adopt the proposed amendment in lines 29 through 37. Judge Leclerc seconded the motion. Motion CARRIED. Judge Burdick voted no.
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SCOPE OF REVIEW
(a) Civil Appeals; Intermediate Orders. Upon an appeal from a judgment, the supreme court may review any intermediate order or determination of the court below which involves the merits and necessarily affects the judgment appearing upon the record transmitted or returned from the trial court.
(b) Civil Appeals; Power of Court on Review. Upon an appeal from a judgment or order, the supreme court shall affirm the judgment or order if it is in accordance with the law and there is substantial evidence to support it. The evidence shall be viewed in the light most favorable to the decision. Otherwise, the supreme court may reverse or modify the judgment or order as to any and all of the parties, and if necessary or proper may order a new trial of the entire cause or of some specific issue or issues, and if the appeal is from a part of the judgment or order, may reverse, affirm, or modify it as to the part appealed from. If, in the consideration of any appeal, it becomes apparent to the supreme court that some issue involved in the case has not been tried, or if tried has not been determined by the trial court, and that it is necessary or desirable to proper disposition of the case on appeal that the issue be determined, the supreme court may remand the case to the trial court for the determination of the issue, without relinquishing jurisdiction of the appeal, and the supreme court may hold the determination of the appeal in abeyance until the issue has been determined by the trial court and the determination certified to the supreme court. In that case the proceedings had and the determination made in the trial court, upon remand, are deemed part of the record on appeal in the case. In all cases the supreme court shall remit its final judgment or decision to the court from which the appeal was taken to be enforced accordingly, and if from a judgment, final judgment thereupon shall be entered in the court below in accordance therewith, except when ordered otherwise.
(c) Criminal Appeals; Intermediate Orders. Upon an appeal from a verdict or judgment, the supreme court may review any intermediate order or ruling which involves the merits or which may have affected the verdict or judgment adversely to the appellant.
(d) Criminal Appeals; Power of Court on Review. The supreme court may reverse, affirm, or modify the verdict or judgment or order appealed from, and may set
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aside, affirm, or modify any or all of the proceedings subsequent to or dependent upon the verdict, judgment, or order, and, if proper, may order a new trial. In either case, the action must be remanded to the trial court with proper instructions, together with the opinion of the court.
Judge Burdick MOVED that the two propositions be submitted to the Supreme Court as alternative propositions -- the one that was approved previously (as a minority report) and the other by this composition of the committee. In fairness to both these could be submitted to the bar as alternative propositions. Mr. Loder seconded the motion. Motion LOST.
NEXT MEETING
The next meeting has been scheduled for November 29-30, 1984, to commence at 9:00 a.m. on the 29th.
NON-LAW TRAINED JUVENILE SUPERVISORS
This item was laid over to the next meeting.
FILING DISCOVERY PAPERS - RULE 5, NDRCivP
Judge Smith MOVED to add to NDRCivP 5 (d)(2) the language of the United States District Court for the District of North Dakota Rule, with appropriate style changes, and precede it with the word "However." It would then read:
"(2) All affidavits, notice and other papers designed to be used upon the hearing of a motion or order to show cause shall be filed prior to the hearing unless otherwise directed by the court. However, discovery materials shall not be filed unless the material is necessary for the court's disposition of a pending motion. In such cases, counsel will be responsible for attaching the relevant material to the motion. In lieu of the filing of discovery materials, an affidavit of service shall be filed on all notices of depositions, interrogatories, requests for admissions, and responses thereto."
Judge Leclerc seconded the motion.
Judge Glaser MOVED a substitute motion to adopt the following language to NDRCivP 5(d)(1):.
"(1) Unless otherwise provided by statute, these rules or by order of the court, all pleadings, affidavits, bonds, and other papers in an action must be
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filed with the clerk at or before the time of the filing of the note of issue. A party may not file discovery materials with the clerk unless the materials are to be submitted to the court for disposition of a pending motion, the court orders them to be filed, or a party certifies that the filing is necessary for safekeeping of the papers or exhibits pending completion of the case. A party certifying that safekeeping is necessary shall state the reasons necessary for safekeeping. The clerk shall return all filed depositions, interrogatories, requests for admission, requests for production of documents, and answers and responses thereto, to the filing party upon final disposition of an appeal or, if no appeal is filed, upon expiration of the time for appeal."
Judge Burdick seconded the motion. Motion CARRIED.
SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS
(a) Service--When Required. Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.
In an action begun by seizure of property, whether through arrest, attachment, garnishment, or similar process, in which no person need be or is named as defendant, any service required to be made prior to the filing of an answer, claim, or appearance shall be made upon the person having custody or possession of the property at the time of its seizure.
(b) Service--How Made. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known
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address or, if no address is known, upon order of the court by leaving it with the clerk of the court. Delivery of a copy within this rule means: handing it to the attorney or to the party; or, leaving it at his office with his clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing.
(c) Service--Numerous Defendants. In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants, and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.
(d) Filing.
(1) Unless otherwise provided by statute, these rules, or by order of the court, all pleadings, affidavits, bonds, and other papers in an action must be filed with the clerk at or before the time of the filing of the note of issue. A party may not file discovery materials with the clerk unless the materials are to be submitted to the court for disposition of a pending motion, the court orders them to be filed, or a party certifies that the filing is necessary for safekeeping of the papers or exhibits pending completion of the case. A party certifying that safekeeping is necessary shall state the reasons necessary for safekeeping. The clerk shall return all filed depositions, interrogatories, requests for admission, requests for production of documents, and answers and responses thereto, to the filing party upon final disposition of an appeal or, if no appeal is filed, upon expiration of the time for appeal."
(2) All affidavits, notices and other papers designed to be used upon the hearing of a motion or order to show cause shall be filed prior to the hearing unless otherwise directed by the court.
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(3) If a party fails to comply with this subdivision, the court, on motion of any party or its own motion, may order the papers to be filed forthwith and if the order is not obeyed, the court may order them to be regarded as stricken and their service to be of no effect.
(e) Removal of Pleadings for Service. Upon the request of the party filing the same, any original pleading or paper in any civil action or proceeding, which by law is required to be filed in the office of the clerk of the court in which such action or proceeding is pending, may be removed from the files for the purpose of serving the same either within or without the state but shall be returned thereto without delay.
(f) Proof of Service. Proof of service under this rule may be made as provided in Rule 4 or by certificate of an attorney showing that he has made service pursuant to subdivision (b).
RULE 30, NDRCivP
Mr. Peterson MOVED to adopt the following amendments to NDRCivP 30:
Line 178 - Delete "Certification and Filing by Officer-Exhibits--Copies--Notice of Filing." and insert "Certification; Copies.";
Line 184 - Delete "he"; insert "the officer"; and delete "then";
Line 185 - Insert "original transcript of the" at the end of the line;
Line 188 - Delete "file";
Line 189 - Delete;
Line 190 - Delete "or"; insert "deliver it or";
Line 191 - Delete "clerk thereof for filing"; insert "party noticing the deposition, who shall be identified on the record."
Line 213 - Delete "court"; insert "party noticing the deposition,"
Lines 219 - 223 - Delete.
Judge Burdick seconded the motion. Motion CARRIED.
DEPOSITIONS UPON ORAL EXAMINATION
(a) When Depositions May Be Taken. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff
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seeks to take a deposition prior to the expiration of 30 days after service of the summons and complaint upon any defendant or service made under Rule 4(e), but leave is not required
(1) if a defendant has served a notice of taking deposition or otherwise sought discovery, or
(2) if special notice is given as provided in subdivision (b)(2).
The attendance of witnesses may be compelled by subpoena as provided in Rule 45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.
(b) Notice of Examination - General Requirements - Special Notice - Non-stenographic Recording - Production of Documents and Things - Deposition of Organization - Deposition by Telephone.
(1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice must state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. If a subpoena duces tecum is to be served on the person to be examined, the description of the material to be produced as set forth in the subpoena must be attached to or included in the notice.
(2) eave of court is not required for the taking of a deposition by plaintiff if the notice
(A) states that the person to be examined is about to go out of this State and will be unavailable for examination unless the deposition is taken before expiration of the 30-day period, and
(B) sets forth facts to support the statement.
the plaintiff's attorney shall sign the notice and his signature constitutes a certification
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by him that to the best of his knowledge, information, and belief the statement and supporting facts are true. The sanctions provided by Rule 11 are applicable to the certification.
If a party shows that when he was served with notice under this subdivision (b)(2) he was unable through the exercise of diligence to obtain counsel to represent him at the taking of the deposition, the depositions may not be used against him.
(3) The court for cause shown may enlarge or shorten the time for taking the deposition. The court may regulate at its discretion the time and order of taking depositions as shall best serve the convenience of the parties and witnesses and the interests of justice.
(4) The court upon motion may order that the testimony at a deposition be recorded by other than stenographic or audio-visual means, in which event the order shall designate the manner of recording, preserving, and filing the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. If the order is made, a party may nevertheless arrange to have a stenographic transcription made at his own expense. Any objections under subdivision (c), any changes made by the witness, his signature identifying the depositions as his own or the statement of the officer that is required if the witness does not sign, as provided in subdivision (e), and the certification of the officer required by subdivision (f) shall be set forth in writing to accompany a deposition recorded by non-stenographic means.
(5) The notice to a party deponent may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 34 applies to the request.
(6) A party may in his notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so
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named must designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify. A subpoena must advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.
(7) The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone. For the purposes of this rule and Rules 28(a), 37 (a)(1), 37(b)(1) and 45(d), a deposition taken by telephone is taken in the district and at the place where the deponent is to answer questions propounded to him.
(c) Examination and Cross-Examination - Record of Examination - Oath - objections. Examination and cross-examination of witnesses may proceed as permitted at the trial under the North Dakota Rules of Evidence. The officer before whom the deposition is to be taken shall put the witness on oath and personally, or by someone acting under his direction and in his presence, shall record the testimony of the witness. The testimony must be taken stenographically or recorded by audio-visual means or any other means ordered in accordance with subdivision (b)(4). If requested by one of the parties the testimony must be transcribed. The court may order the cost of transcription paid by one or some of, or apportioned among, the parties.
All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objections to the proceedings, must be noted by the officer upon the deposition. Evidence objected to must be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and he shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.
(d) Motion to Terminate or Limit Examination. At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or
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in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the district where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it may be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition must be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.
(e) Submission to Witness - Changes - Signing. When the testimony is fully transcribed the deposition must be submitted to the witness for examination and must be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make must be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition must then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness within 10 days after its submission to him, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed unless on a motion to suppress under Rule 32(d)(4) the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.
(f) Certification Copies.
(1) The officer shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. Unless otherwise ordered by the court, the officer shall securely seal the original transcript of the deposition in an envelope indorsed with the title of the action and marked "Deposition of (here insert name of witness)" and shall promptly deliver it or send it by registered or certified mail to the party noticing the deposition, who shall be identified on the record.
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Documents and things produced for inspection during the examination of the witness, upon the request of a party, shall be marked for identification and annexed to the deposition, and may be inspected and copied by any party, but if the person producing the materials desires to retain them he may
(A) offer copies to be marked for identification and annexed to the deposition and to serve thereafter as originals if he affords to all parties fair opportunity to verify the copies by comparison with the originals, or
(B) offer the originals to be marked for identification, after giving to each party an opportunity to inspect and copy them, in which event the materials may then be used in the same manner as if annexed to the deposition. Any party may move for an order that the original be annexed to and returned with the deposition to the party noticing the deposition, pending final disposition of the case.
(2) Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent.
(g) Failure to Attend or to Serve Subpoena Expenses.
(1) If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to the other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney's fees.
(2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness because of the failure does not attend and another party attends in person or by attorney because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay the other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney's fees.
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RULE 30.1, NDRCivP
Judge Leclerc MOVED to adopt the following amendments to NDRCivP 30.1:
Line 64 - After "(9)" insert "Delivery;" and delete "Filing";
Line 65 - At end of line insert "operator shall deliver or send by registered or certified mail to the party noticing the audio-visual deposition";
Line 70 - After "and" insert "any" and place a period after "exhibits".
Lines 70-73 - Delete after "exhibits".
Mr. Peterson seconded the motion. Motion CARRIED.
UNIFORM AUDIO-VISUAL DEPOSITION RULE
(a) Authorization of Audio-Visual Deposition.
(1) Any deposition upon oral examination may be recorded by audio-visual means without a stenographic record. Any party may make at his own expense a simultaneous stenographic or audio record of the deposition. Upon his request and at his own expense, any party is entitled to an audio or audio-visual copy of the audio-visual recording.
(2) The audio-visual recording is an official record of the deposition. A transcript prepared in accordance with Rule 30(c) is also an official record of the deposition.
(3) On motion the court, for good cause, may order the party taking, or who took, a deposition by audio-visual recording to furnish, at his expense, a transcript of the deposition.
(b) Use. An audio-visual deposition may be used for any purpose and under any circumstances in which a stenographic deposition may be used.
(c) Notice. The notice for taking an audio visual deposition and the subpoena for attendance at that deposition must state that the deposition will be recorded by audio-visual means.
(d) Procedure. The following procedure must be observed in recording an audio-visual deposition:
(1) Opening of Deposition. The deposition must begin with an oral or written statement on camera which includes:
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(A) the operator's name and business address;
(B) the name and business address of the operator's employer;
(C) the date, time, and place of the deposition;
(D) the caption of the case;
(E) the name of the witness;
(F) the party on whose behalf the deposition is being taken; and
(G) any stipulations by the parties.
(2) Counsel. Counsel shall identify themselves on camera.
(3) Oath. The oath must be administered to the witness on camera.
(4) Multiple Units. If the length of a deposition requires the use of more than one recording unit, the end of each unit and the beginning of each succeeding unit must be announced on camera.
(5) Closing of Deposition. At the conclusion of a deposition, a statement must be made on camera that the deposition is concluded. A statement may be made on camera setting forth any stipulations made by counsel concerning the custody of the audio-visual recording and exhibits or other pertinent matters.
(6) Index. Depositions must be indexed by a time generator or other method specified by the Supreme Court.
(7) Objections. An objection must be made as in the case of stenographic depositions.
(8) Editing. If the court issues an editing order, the original audio-visual recording must not be altered.
(9) Delivery. Unless otherwise stipulated by the parties, the operator shall deliver or send by registered or certified mail to the party noticing the audio-visual deposition the original audio-visual recording of a deposition, any copy edited pursuant to an order of the court, and any exhibits.
(e) Costs. The reasonable expense of recording, editing, and using an audio-visual deposition may be taxed as costs.
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RULE 31, NDRCivP
Mr. Peterson MOVED to adopt the following amendments to NDRCivP 31:
Lines 39-40 - Delete;
Line 41 - Delete "him"; insert "and return them to the party noticing the deposition. Upon payment of reasonable charges, the officer shall furnish a copy of them to any party or to the deponent.";
Delete remainder of rule.
Judge Smith seconded the motion.
RECESS
The meeting recessed to 9:00 a.m., October 19, 1984.
CALL TO ORDER
The meeting was called to order at 9:00 a.m., October 19, 1984, by Justice Paul M. Sand, chairman.
ATTENDANCE
Present:
Hon. Wallace D. Berning
Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Mr. Robert C. Heinley
Hon. Frank J. Kosanda
Hon. Lawrence A. Leclerc
Hon. William S. Murray
Hon. Kirk Smith
Mr. Ward M. Kirby
Professor Larry Kraft
Mr. LeRoy A. Loder
Mr. David L. Peterson
Mr. Ray Rund
Absent:
Hon. James H. O'Keefe
Mr. Leonard H. Bucklin
Mr. James L. Lamb
Ms. Beryl J. Levine
Mr. Herbert L. Meschke
Mr. Dean Winkjer
RULE 9.1, NDROC
Mr. Murray Sagsveen appeared before the committee to explain the proposed amendment to NDROC 9.1 submitted by the Court Services Administration Committee. The proposed amendment deals with appeals from government agencies which are not governed by the Administrative Agencies Practice Act(NDCC Ch. 28-32).
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The committee directed the staff attorney to revise the proposed rule to incorporate some of the ideas which have been expressed, and to consider amending this rule at the next meeting.
Upon learning of the illness of Mr. Leonard Bucklin the committee asked the chairman to convey to Mr. Bucklin their best wishes for his recovery.
RULE 31, NDRCivP
(See page 19 of minutes for original motion.)
Judge Leclerc MOVED a substitute motion to direct the staff attorney to draft a proposed amendment to subdivision (c) to be submitted to the committee at the next meeting. Judge Kosanda seconded the motion. Motion CARRIED.
RULE 32, NDRCivP
Mr. Peterson MOVED to adopt the following amendment to NDRCivP 32:
Line 60 - Delete the words "and duly filed." Judge Smith seconded the motion. Motion CARRIED.
USE OF DEPOSITIONS IN COURT PROCEEDINGS
(a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the North Dakota Rules of Evidence.
(2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, superintendent or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose.
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(3) The deposition of a witness, whether, or not a party, may be used by any party for any purpose if the court finds:
(A) that the witness is dead; or
(B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or
(C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or
(D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or
(E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.
(4) If only a part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.
Substitution of parties pursuant to Rule 25 does not affect the right to use depositions previously taken; and, if an action has been brought in any court of this state or of any other state or of the United States and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken in the former action may be used in the latter as if originally taken therefor. A deposition previously taken may also be used as permitted by the North Dakota Rules of Evidence.
(b) Objections to Admissibility. Subject to the provisions of Rule 28(b) and subdivision (d)(3) of this rule, objection may be made at the trial or hearing to
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receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
(c) [Abrogated]
(d) Effect of Errors and Irregularities in Depositions.
(1) As to Notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.
(2) As to Disqualification of Officer. An objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.
(3) As to Taking of Deposition.
(A) An objection to the competency of a witness or to the competency, relevancy, or materiality of testimony is not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.
(C) An objection to the form of written questions submitted under Rule 31 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within 5 days after service of the last questions authorized.
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(4) As to Completion and Return of Deposition. An error and irregularity in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31 is waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after the defect is, or with due diligence might have been, ascertained.
RULE 35.1, NDRAppP
Judge Kosanda MOVED to adopt Rule 35.1, North Dakota Rules of Appellate Procedure, as proposed with style changes and to have staff incorporate the changes made today to NDRCivP 52 and NDRAppP 35 into subdivisions (b) (1)-(5) and submit at the next meeting. Judge Murray seconded the motion. Motion CARRIED.
RULE 3, NDRAppP
Judge Kosanda MOVED to adopt the following amendment to NDRAppP 3:
Line 24 - After the word "taken" insert "; and shall contain a concise statement of the grounds on which the jurisdiction of the supreme court is invoked, including citation of authority."
Judge Berning seconded the motion.
Mr. Rund MOVED a substitute motion to not adopt the proposed amendment to NDRAppP 3. Judge Glaser seconded the motion. Motion CARRIED.
RULE 28, NDRAppP
Judge Kosanda MOVED to adopt the following amendments, with style changes, to NDRAppP 28:
Line 9 - A new subsection (2) as follows: A concise statement of the grounds on which the jurisdiction of the supreme court is invoked, including citations of authority.
Line 15 - After "A" insert "concise";
Line 18 - After the word "below" insert ", followed by a clear, concise, chronological"
Line 22 - After the period insert "If the facts are in dispute the brief must so state.";
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Line 29 - Add "The argument must avoid unnecessary repetition.";
Line 33 - Add "7. A statement that the party does or does not object to the hearing being broadcast, televised, recorded, or photographed."
Line 54 add "r" to "purchase";
Line 83 Add "A motion for an extension of the page limits of a brief must assert careful editing for conciseness and to avoid repetition, specify in detail why additional pages are necessary, and state the number of additional pages requested."
Judge Murray seconded the motion. Motion CARRIED.
Justice Sand presented the proposition to the committee of reducing the maximum number of pages in the briefs from 50 to a lower figure. The resistance was one hundred percent.
BRIEFS
(a) Brief of Appellant. The brief of the appellant must contain under appropriate headings and in the following order:
1. A table of contents, with page references, and a table of cases (alphabetically arranged), statutes, and other authorities cited, with references to the pages of the brief where they are cited.
2. A concise statement of the grounds on which the jurisdiction of the supreme court is invoked, including citations of authority.
3. A statement of the issues presented for review.
4. A concise statement of the case. The statement must first indicate briefly the nature of the case, the course of proceedings, and its disposition in the court below, followed by a clear, concise, chronological statement of the facts relevant to the issues presented for review, with appropriate reference to the record (subdivision (e)). If the facts are in dispute the brief must so state.
5. An argument. The argument may be preceded by a summary. The argument must contain the contentions of the appellant with respect to the
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issues presented, and the reasons therefor, with citations to the authorities, statutes, and parts of the record relied on. The argument must avoid unnecessary repetition.
6. A short conclusion stating the precise relief sought.
7. A statement that the party does or does not object to the hearing being broadcast, televised, recorded, or photographed.
(b) Brief of the Appellee. The brief of the appellee must conform to the requirements of subdivision (a)(1), (3), (4), (5), (7), but a statement of the issues or of the case need not be made unless the appellee is dissatisfied with the statement of the appellant.
(c) Reply Brief. The appellant may file a brief in reply to the brief of the appellee. The reply brief must be confined to new matter raised in the brief of the appellee. Except as provided in subdivision (h), no further briefs may be filed without leave of the court.
(d) References in Briefs to Parties. Counsel will be expected in their briefs and oral arguments to keep to a minimum references to parties by such designations as "appellant" and "appellee." It promotes clarity to use instead the designations used in the trial court or in the agency proceedings, or the actual names of parties, or descriptive terms such as "the employee," "the injured person," "the taxpayer," "the purchaser."
(e) References in Briefs to the Record. References in the briefs to parts of the record reproduced in the appendix filed with the brief of the appellant (see Rule 30(a)) must be to the pages of the appendix at which those parts appear. If the record is reproduced in accordance with the provisions of Rule 30(f), or if references are made in the briefs to parts of the record not reproduced, the references must be to the pages of the parts of the record involved; e.g., Answer p. 7, Motion for Judgment p. 2, Transcript p. 231. Intelligible abbreviations may be used. If reference is made to evidence the admissibility of which is in controversy, reference must be made to the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected.
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(f) Reproduction of Statutes, Rules, Regulations, and Other Sources. If determination of the issues presented requires the study of statutes, rules, regulations, other sources, or relevant parts thereof, they must be reproduced in the brief or in an addendum thereto, or they may be supplied to the court in pamphlet form.
(q) Length of Briefs. Except by permission of the court, principal briefs, whether written or printed, must not exceed 50 pages, and reply briefs must not exceed 25 pages, exclusive of pages containing the table of contents, tables of citations, and any addendum containing statutes, rules, regulations, and other sources. A motion for an extension of the page limits of a brief must assert careful editing for conciseness and to avoid repetition, specify in detail why additional pages are necessary, and state the number of additional pages requested.
(h) Briefs in Cases Involving Cross-Appeals. If a cross-appeal is filed, the party first filing the notice of appeal is deemed to be the appellant for the purposes of this rule and Rules 30, 31, 32 and 34, unless the parties otherwise stipulate or the court otherwise orders. A cross-appellant shall file a single brief as appellee and cross-appellant at the time his brief as appellee is due. This brief must contain the issues and argument involved in his appeal as well as the answer to the brief of the appellant. The appellant's answer to the argument of the cross-appeal must be included in his reply brief, and the contents of his brief as cross-appellee shall be the same as in an appellee's brief, but without duplication of statements, arguments, or authorities already contained in the appellant's brief. To avoid duplication, reference may be made to the appropriate portions of the appellant's brief. The cross-appellant may then file a reply brief confined strictly to reply to those arguments raised in the cross-appeal within 14 days after the due date of the appellant's reply brief, but, unless excused by the court, a reply brief must be filed at least 3 days before argument.
(i) Briefs in Cases Involving Multiple Appellants or Appellees. In cases involving more than one appellant or appellee, including cases consolidated for purposes of the appeal, any number of either may join in a single brief, and any appellant or appellee may adopt by reference any part of the brief of another. Parties may similarly join in reply briefs.
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RULE 33, NDRAppP
Judge Burdick MOVED to adopt the following proposed NDRAppP 33:
The supreme court may direct the parties, or their attorneys, to appear before the court, justice, or person designated by the court, either in person or by telephone, for a preheating conference to consider simplification of the issues and other matters as may aid in the disposition of the proceeding by the court. The court, justice, or person designated by the court shall issue an order which recites the action taken at the conference and the agreement made by the parties or their attorneys as to any of the matters considered and which limits the issues to those not disposed of by admissions or agreements of counsel. The order controls the subsequent course of the proceeding, unless modified to prevent manifest injustice.
Professor Kraft seconded the motion. Motion LOST.
ADJOURNMENT
The meeting adjourned at twelve o'clock noon.
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Secretary