Joint Procedure Committee Meeting

Scheduled on Thursday, April 26, 1979 @ 2:00 PM

MINUTES OF MEETING

Joint Committee of the Judicial Council
and the State Bar Association
Joint Procedure Committee

April 26-27, 1979

CALL TO ORDER

The meeting was called to order at 1:00 p.m., April 26, 1979, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Present

Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. Halvor L. Halvorson
Hon. Robert C. Heinley
Hon. William S. Murray
Hon. James H. O'Keefe
Mr. Ward M. Kirby
Mr. Richard A. McKennett
Mr. David L. Peterson

Absent

Hon. Larry Hatch
Hon. Kirk Smith
Hon. Robert Vogel
Mr. Leonard H. Bucklin
Mr. Larry Kraft
Mr. James L. Lamb
Mr. LeRoy A. Loder
Mr. Herbert L. Meschke
Mr. Russell G. Nerison

RULE 30.1, NDRCivP - COMMITTEE NOTE

Judge Burdick MOVED to approve the commentary to Rule 30.1, NDRCivP. Mr. Peterson seconded the motion. Motion CARRIED.

Rule 30.1 is substantially the same as the Uniform Audio-Visual Deposition Rule as drafted by the National Conference of Commissioners on Uniform State Laws.

The taking of depositions by other than stenographic means has previously been allowed by Rule 30(b)(4) pursuant to court order. However, as stated in the official comment to the Uniform Rule:

"[T]his Rule (1) does not require a court order for the taking of an audio-visual deposition; (2) sets out uniform standards for recording, preserving, filing, and using the depositions rather than leaving it to individual orders; and (3) specifically designates the audio-visual recording as an official record of the deposition.

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"The provisions for audio-visual depositions contained in this Rule supplement, and are in addition to, the general provisions applicable to the taking and use of depositions."

Subdivision (a)(2), as indicated in the official comment:

"[P]rovides that the audio-visual recording is an official record of the deposition. If a typewritten transcript is prepared . . . [as prescribed by Rule 30(c)] it too is an official record of the deposition. Both can be used by the parties for briefing, argument, and appeal. In the event of conflict between the two records, the court would have to resolve the disparity, just as it might now, if the witness contended the stenographic transcription was inaccurate. Because the audio-visual recording is an exact recording, it would normally be relied upon to resolve any disparity; but, in rare circumstances, perhaps the stenographic transcription might be adopted by the court as a better recording."

Subdivision (a)(3) allows the court to order the proponent of the deposition to bear the expense of preparing a typewritten transcript when "good cause" is shown. The transcript could either be prepared simultaneously with the audio-visual recording or at a later time from the audio portion of the audio-visual recording.

The use of an audio-visual deposition, as stated in subdivision (b), is the same as for a stenographic deposition, which is found in Rule 32. The official comments suggests other uses and some advantages of this type of deposition:

"This Rule does not expand the use of depositions; however, as is true with other depositions, the parties may wish to stipulate the use of an audio-visual deposition in a situation where its use is not authorized hereby. In such an event, an audio-visual recording is superior to the reading of a stenographic deposition, because it provides an exact visual and audio recording of the testimony. It has many of the attributes of live testimony and will be advantageous for taking of medical and other expert testimony where both delay and cost may be minimized substantially by an audio-visual recording."

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Subdivision (d) specifies procedures to be followed in recording an audio-visual deposition. These procedures are designed to insure integrity of the recording and uniformity when the deposition will be used in other jurisdictions. In this subdivision, and throughout the Rule, provisions have been made for improved technology in the recording process. Changes in the Rule will not be necessary when advancements are made in the recording medium (e.g., from the present "video-tape" to a disc or other method) and associated equipment.

The official comment to subdivision (d) expanded on several areas:

"In paragraph (6) indexing is by 'time generator or other method . . .' in anticipation that yet better techniques for indexing may be developed.

"Paragraph (7) provides that objections will be handled in the same manner as for stenographic depositions. However, the Special Committee anticipates that, for ease of editing of objections and testimony ordered to be struck, the parties may frequently wish to stipulate that objections may be made immediately after the answer.

"The Rule does not set out alternative methods of editing because improving technology may develop better techniques than those presently employed. Various techniques are currently used for editing, including (1) preparation of an edited copy omitting testimony that has been struck and (2) suppressing the audio, or audio-visual, display of any portion of the testimony struck. The integrity of the recording, regardless of the editing technique employed, requires that the original recording remain unaltered and thus paragraph (8) so provides.

"No provisions are included for retention and storage of the record by the clerk of court or its return at the conclusion of the proceedings. Local rules can best make provision for those matters. If the clerk of court has display equipment that cannot erase, free accessibility under his supervision would be appropriate. If not, controls should be developed by local rule or court order to preserve the integrity of the

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record from inadvertent, or intentional erasing or destruction of the recording. The videotape itself is reusable and normally should be returned to the party supplying it when the case is concluded."

RULE 11, NDRCrimP - EXPLANATORY NOTE

Judge Burdick MOVED that the explanatory note to Rule 11, NDRCrimP, be approved as revised. Mr. McKennett seconded the motion. Motion CARRIED.

Rule 11 is an adaptation of Rule ll of the Proposed Amendments to the Federal Rules (52 F.R.D. 415 (1971)] and differs only as to style. The Rule is designed to accomplish a number of objectives not found under existing practice: (1) it prescribes the advice which the court must give to ensure that the defendant who pleads guilty has made an informed plea; and (2) it provides for a plea agreement procedure designed to give recognition to the propriety of plea discussions between counsel, to bring the existence of plea agreement out in open court, and to provide methods for court acceptance or rejection of the plea agreement.

Subdivision (a) provides for the various alternative pleas which the defendant may enter.

Subdivision (b) prescribes the advice which the court must give to the defendant as a prerequisite to the acceptance of a plea of guilty. The court is required to determine that a plea is made with an understanding of the nature of the charge and the consequences of the plea. The "consequences" which must be explained to the defendant, codifies in the Rule the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which held that the defendant must be apprised of the fact that he relinquishes certain constitutional rights when he pleads guilty. Subdivision (b) established the requirement that the court address the defendant personally. (See McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1960). Subdivision (b)(1) requires the court to determine that the defendant understands the nature of the charge. Subdivision (b)(2) requires that the court inform the defendant of and determine that he understands "the mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered." The objective is to insure that the defendant knows what minimum sentence the judge MUST impose and the maximum sentence

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the judge MAY impose, and further to explain the consecutive sentencing possibilities where the defendant pleads to more than one offense. This provision is included so that the judicial warning effectively serves to overcome subsequent objections by the defendant that his counsel gave him erroneous information. (A.B.A. Project on Standards for Criminal Justice, Standards Relating to Pleas of Guilty, Approved Draft (1968), p. 27.) Subdivisions (b)(3) and (4) specify the constitutional rights that the defendant waives by a plea of guilty (to satisfy the requirements of waiver as set forth in Boykin, supra). The purpose of subdivision (b)(5) is to ensure a knowing and intelligent waiver of counsel required by Boykin, supra, and other cases. A similar requirement is found in Rule 5(b) governing the initial appearance.

Subdivision (c) requires that the court determine that the plea of guilty is voluntary before accepting it. It also requires the court to inquire whether the defendant's willingness to plead guilty results from plea discussions between the defense attorney and the prosecuting attorney. Implicit in the Rule is the assumption that any promise made in reaching a proper plea agreement does not render a plea involuntary. Subdivisions (c) and (d) afford the court an adequate basis for rejecting an improper plea agreement induced by threats or inappropriate promises. The Rule specifies that the court personally address the defendant in determining the voluntariness of the plea. (See McCarthy v. United States, supra, 394 U.S. 459, 466, 467 (1969).)

Subdivision (d) provides for a plea agreement procedure. In doing so it gives recognition to the propriety of plea discussions and plea agreements, provided they are disclosed in open court and subject to acceptance or rejection by the trial judge. It is believed that where the defendant by his plea aids in insuring prompt and certain application of correctional measures, the proper ends of the criminal justice system are furthered because swift and certain punishment serves the ends of both general deterrence and the rehabilitation of the individual defendant. The procedure described in subdivision (d) is designed to prevent abuse of plea discussions and agreements by providing appropriate and adequate safeguards. Subdivision (d)(1) specifies that both the attorney for the prosecution and the attorney for the defense, or the defendant when acting pro se, participate in plea discussions. It also makes clear that there are three

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possible concessions that may be made in a plea agreement: first, the charge may be reduced to a lesser or related offense; second, the attorney for the prosecution may agree not to recommend or not oppose the imposition of a particular sentence; or third, the attorney for the prosecution may promise to move for a dismissal of other charges. The court is not permitted to participate in plea discussions because of the possibility that the defendant would believe that he would not receive a fair trial, if no agreement had been reached or the court rejected the agreement, and a subsequent trial ensued before the same judge.

Subdivision (d)(2) provides that the judge shall require the disclosure of any plea agreement in open court or, for good cause, in camera. Upon notice of the plea agreement, the court is given the option of accepting or rejecting the agreement or deferring its decision until receipt of the presentence report. This decision is left to the discretion of the individual trial judge.

Subdivision (d)(3) requires the court, if it accepts the plea agreement, to inform the defendant that it will embody in the judgment and sentence the disposition provided in the plea agreement, or one more favorable to the defendant. This provision serves the dual purpose of informing the defendant immediately that the agreement will be implemented.

Subdivision (d)(4) requires the court, on the record, upon its rejection of the plea agreement, to inform the defendant of this fact and to advise the defendant personally, in open court, or for good cause, in camera, that the court is not bound by the plea agreement. The defendant must be afforded an opportunity to withdraw his plea and must be advised that if he persists in his guilty plea, the disposition of the case may be less favorable to him than contemplated by the plea agreement.

Subdivision (d)(5) requires that the court be notified of the existence of a plea agreement at the arraignment or at another time prior to trial fixed by the court unless it can be shown that for good cause this was not done. Having a plea entered at this stage provides a reasonable time for the defendant to consult with counsel and for counsel to complete any plea discussions with the attorney for the prosecution. The objective of the provision is to make clear that the court has authority to require a plea agreement to be

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disclosed sufficiently in advance of trial so as not to interfere with the efficient scheduling of criminal cases.

Subdivision (d)(6) makes it clear that generally if a plea discussion does not result in a plea of guilty, if a plea is not accepted or is withdrawn, or if a judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal or civil action or administrative proceeding. The only exception to this general rule is if the statements are voluntary, reliable, made under oath, on the record, in court, and in the presence of counsel. Even under these circumstances the exception applies only if the plea or offer is used for impeachment purposes or in a subsequent prosecution of the declarant for perjury or false statement (see Rule 410, N.D.R.Ev.). The policy reason for the general rule is to encourage counsel to feel free to engage in plea discussions involving the defendant with the knowledge that plea-related statements may be used against the defendant only under very limited circumstances.

Subdivision (e) requires that the court not enter judgment upon a plea of guilty without making such an inquiry as will satisfy it that there is a factual basis for the plea.

Subdivision (f) requires that a verbatim record be kept of the proceedings. Such a record is important in the event of a postconviction attack.

Subdivision (g), which is a modification of the language in Section 29-14-21 and 29-13-02, is intended to permit a corporate defendant or a misdemeanant defendant to enter a plea through counsel. When a plea is entered pursuant to this subdivision, the requirement of subdivision (b), Advice to Defendant, is deemed waived.

RULE 412, NDREv

Mr. Peterson MOVED to not adopt any portion of the proposed Rule 412. Judge O'Keefe seconded the motion. Motion CARRIED. Judge Burdick asked for a division - 7 members voted aye; Judge Burdick wished to be recorded as having voted nay.

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RULE XV - RULES OF COURT FOR THE DISTRICT COURTS

Judge Burdick MOVED that the committee disapprove of the concept of approval of claim by petition, as contained in the proposed Rule XV, and that the staff attorney be instructed to draft a rule to contain the following points:

1. What role the district court should have in dividing property among several claimants;

2. To what extent should the court direct the management of the funds - co-ownership or trusteeship;

3. Should the district court defer to the county court as to the conservator concept.

Judge Halvorson seconded the motion. Motion CARRIED.

CONTINUING LEGAL EDUCATION

Judge Burdick MOVED that the committee reaffirm its approval of the need for CLE recognition for attendance at Joint Procedure Committee meetings, and refer the matter to Mr. Loder for presentation of this matter to the CLE commission. Judge Halvorson and Mr. Kirby seconded the motion. Motion CARRIED.

NUMBERING SYSTEM FOR NORTH DAKOTA JUDICIAL DISTRICT LOCAL RULES

Mr. Peterson MOVED to delay consideration for a day of the format for numbering the district court rules. Judge Burdick seconded the motion. Motion CARRIED.

RULE 16, NDRCrimP

Judge Burdick MOVED to table consideration of amendments to Rule 16, NDRCrimP. Judge O'Keefe seconded the motion. Motion CARRIED.

RULE 17, NDRCrimP

Judge O'Keefe MOVED to table consideration of amendments to Rule 17, NDRCrimP. Judge Burdick seconded the motion. Motion CARRIED.

NEXT MEETING

Mr. Kirby MOVED that the next meeting of the Joint Procedure Committee be held on September 20 and 21, 1979, commencing at 1:00 p.m. on September 20. Mr. McKennett seconded the motion. Motion CARRIED.

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ADJOURNMENT

The meeting adjourned to 9:00 a.m., April 27, 1979.

CALL TO ORDER

The meeting was called to order at 9:00 a.m., April 27, 1979, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Present

Hon. Eugene A. Burdick

Hon. Gerald G. Glaser

Hon. Halvor L. Halvorson

Mr. Ward M. Kirby

Mr. Herbert L. Meschke

Mr. David L. Peterson

Absent

Hon. Larry Hatch

Hon. Robert C. Heinley

Hon. William S. Murray

Hon. James H. O'Keefe

Hon. Kirk Smith

Hon. Robert Vogel

Mr. Leonard H. Bucklin

Mr. Larry Kraft

Mr. James L. Lamb

Mr. LeRoy A. Loder

Mr. Richard McKennett

Mr. Russell G. Nerison

RULE 609, NDREv

Mr. Peterson MOVED that the staff attorney be directed to put a note in the explanatory comments to Rule 609 indicating the deletion of subdivision (e) from the federal format does not mean that the evidence of a conviction is inadmissible or evidence of the pendency of an appeal is inadmissible; and that the amendment of Rule 609 to include subdivision (e) as proposed not be considered. Mr. Kirby seconded the motion. Motion CARRIED.

RULE 1102, NDREv

Judge Burdick MOVED that the language "[Reserved for future use.]" be restored in the North Dakota Rules of Evidence. Mr. Peterson seconded the motion. Motion CARRIED.

RULE 30, NDRCivP

Mr. Peterson MOVED to amend Rule 30(b)(4), on the second line after the word "stenographic" insert "or audiovisual"; and to amend Rule 30(c), third line, delete "provisions of Rule 43(b)" and insert "North Dakota Rules of Evidence." Mr. Meschke seconded the motion. Motion CARRIED.

Judge Burdick MOVED to approve the adoption of Rule 30, as amended. Judge Halvorson seconded the motion. Motion CARRIED.

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RULE 30. 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 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), except that 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) of this rule.

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.

(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 shall 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 designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice.

(2) Leave 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 the district where the action is pending and more than 100 miles from the place, of trial, or is about to go out of the United States, or is bound

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on a voyage to sea, and will be unavailable for examination unless his 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 to 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 deposition may not be used against him.

(3) The court may by cause shown 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 may upon motion 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. An order is not required for a deposition taken pursuant to Rule 30.1.

(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 shall apply to the request.

(6) A party may in his notice name as the deponent a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the

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matters on which examination is requested. The organization so named shall 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. The person 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.

(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 provisions of the North Dakota Rules of Evidence. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with subdivision (b)(4) of this rule. If requested by one of the parties, the testimony shall 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 objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall 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 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

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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 shall 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 shall 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.

(c) Submission to Witness--Changes--Signing.

When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall 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 shall be entered upon the deposition by the officer with a statement of reasons given by the witness for making them. The deposition shall 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 of 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 and Filing by Officer--Exhibits-Copies--Notice of Filing.

(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. He shall then securely seal the deposition in an envelope indorsed with the title of the action and marked "Deposition of (here insert name of witness)" and shall promptly file it with the court in which the action is pending or send it by registered or certified mail to the clerk thereof for filing.

Documents and things produced for inspection during the examination of the witness shall, upon

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the request of a party, be marked for identification and annexed to and returned with the deposition, and may be inspected and copies by any party, except that

(A) the person producing the materials may substitute copies to be marked for identification, if he affords to all parties fair opportunity to verify the copies by comparison with the originals, and

(B) if the person producing the materials requests their return, the officer shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them, and the materials may then be used in the same manner as if annexed to and returned with the deposition. Any party may move for an order that the original be annexed to and returned with the deposition to the court, 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.

(3) The party taking the deposition shall give prompt notice of its filing to all other parties.

(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 such 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 such failure does not attend, and if 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 to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney's fees.

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RULE 32, NDRCivP

Judge Burdick MOVED to delete the whole of subdivision (c), except "(c)" and to insert "[Abrogated.]." Mr. Meschke seconded the motion. Motion CARRIED.

Judge Burdick MOVED to approve the adoption of Rule 32, NDRCivP, as amended. Mr. Peterson seconded the motion. Motion CARRIED.

RULE 32. 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 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.

(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.

(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

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(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 part of a deposition is offered in evidence by a 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, when an action in any court of this state or of any other state or of the United States has been dismissed 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 and duly filed in the former action may be used in the latter as if originally taken therefor.

(b) Objections to Admissibility. Subject to the provisions of Rules 28(b) and subdivision (d)(3) of this rule, objection may be made at the trial or hearing to 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. 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.

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(3) As to Taking Deposition.

(A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are 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 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) Objections 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.

(4) As to Completion and Return of Deposition. Errors and irregularities 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 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

RULE 43, NDRCivP

Judge Burdick MOVED to amend Rule 43(b), in the fifth line after the word "party," add "or a witness identified with an adverse party,"; to delete subdivision (c) with an indication that the subdivision has been abrogated; and to make an appropriate cross reference in the comments to Rules 611 and 103 of the North Dakota Rules of Evidence. Mr. Meschke seconded the motion. Motion CARRIED.

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RULE 43. EVIDENCE.

(a) In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by statute of these rules. All evidence shall be admitted which is admissible under the statutes of this State, the North Dakota Rules of Evidence, or other Rules adopted by the North Dakota Supreme Court.

(b) Scope of Examination and Cross-Examination. A party may interrogate any unwilling or hostile witness by leading questions. A party may call an adverse party or an officer, director, superintendent or managing agent of a public or private corporation or of a partnership or association which is an adverse party, or a witness identified with an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of his examination in chief.

(c) [Abrogated.]

(d) Affirmation in Lieu of Oath. Whenever under these rules an oath is required to be taken, a solemn affirmation shall be accepted in lieu thereof as provided by section 31-01-22, North Dakota Century Code.

(e) Evidence on Motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

RULE 44.1, NDRCivP

Judge Burdick MOVED to adopt the proposed amendment to Rule 44.1. Mr. Meschke seconded the motion. Motion CARRIED.

RULE 44.1. DETERMINATION OF FOREIGN LAW.

A party who intends to raise an issue concerning the law of a foreign country shall give notice in his pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the North Dakota Rules of Evidence. The court's determination shall be treated as a ruling on a question of law.

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RULE 54, NDRCivP

Judge Burdick MOVED to approve the proposed amendment in line 11 of subdivision (b), delete the words "all of the claims or the rights and liabilities of fewer than"; in line 3 of subdivision (e), delete the word "interested" and substitute the word "inserted." Mr. Kirby seconded the motion. Motion CARRIED.

RULE 54. JUDGMENT--COSTS

(a) Definition--Form. "Judgment" as used in these rules includes a decree and any order from which an appeal lies. A judgment shall not contain a recital of pleadings, the report of a master, or the record of prior proceedings.

(b) Judgment Upon Multiple Claims or Involving Multiple Parties.When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

(c) Demand for Judgment. A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.

(d) Death Before Judgment. If a party dies after a verdict or decision upon any issue of fact and before judgment, the court nevertheless may render judgment thereon. Such judgment is not a lien on the real property of the deceased party, but is payable as provided in section 30-18-14, North Dakota Century Code.

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(e) Costs. Costs and disbursements shall be allowed as provided by statute. Costs and disbursements may be taxed by the clerk on 2 days' notice, and inserted in the judgment. The disbursements shall be stated in detail and verified by affidavit, which shall be filed, and a copy of such statement and affidavit shall be served with the notice. The party objecting to any item shall specify in writing the ground thereof; a party aggrieved by the action of the clerk may file a notice of appeal with the clerk, who shall forthwith certify the matter to the court. The appeal shall be heard upon 8 days' notice and determined upon the objections so certified.

(f) Notice of Retaxation--Procedure. Costs may be taxed without notice, but when they are so taxed notice of retaxation thereof must be given immediately afterwards as prescribed in subdivision (e) of this rule by the party at whose instance they are taxed. In default of notice of retaxation, the court, upon the application of a party entitled to notice, must direct a retaxation, with costs of the motion to be paid by the party in default. Any sum deducted upon a retaxation must be credited upon the judgment.

LOCAL RULES OF THE DISTRICT COURT

Judge Burdick MOVED that the staff attorney, with the approval of the chairman, prepare a classification of local rules, keeping in mind items that are presently included in the federal rules. Judge Glaser seconded the motion. Motion CARRIED.

PROPOSED COMMENTARIES TO CIVIL RULES

Judge Burdick MOVED that the staff attorney be instructed to prepare official commentaries focusing upon the differences between our rules and the federal rules. Judge Halvorson seconded the motion. Motion CARRIED.

SUBMISSION OF RULES TO SUPREME COURT FOR ADOPTION

Judge Burdick MOVED to submit North Dakota Rules of Criminal Procedure Nos. 11 (b)(5), (d)(1), (d)(2), (d)(3), (d)(4); 12(e); 12.1; 12.2; 15; 16(a), (b), (d), (f); 17; 20(a); 29.1; 32(c)(1), (c)(3)(i), (c)(3)(iv), (f)(1); 41(c); 43(b)(1), (b))2); and 54(b)(c); North Dakota Rules of Civil Procedure Nos. 30.1; 30; 32; 43; 44.1; 54; and North Dakota

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Rule of Evidence No. 1102, together with explanatory notes, to the Supreme Court for final action and adoption. Judge Halvorson seconded the motion. Motion CARRIED.

ADJOURNMENT

Judge Burdick MOVED to adjourn. Mr. Kirby seconded the motion. Motion CARRIED.

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Secretary