Joint Procedure Committee Meeting

Scheduled on Monday, September 25, 1995 @ 10:00 AM

MINUTES OF MEETING

Joint Procedure Committee

September 28-29, 1995

TABLE OF CONTENTS

Preliminary Matters 2
Approval of Minutes 2
Rules 28 § 32, N.D.R.App.P.-Word Limitations 2
Rule 11, N.D.R.Civ.P.-Safe Harbor From Sanctions for Violation of Rule 11 2
Rule 8.3, NDROC-Case Management-Divorce Cases 3
Rule 8.5, NDROC-Domestic Relations Summary Proceeding 11
Rule 31, N.D.R.App.P.-Filing and Service of Briefs 12
Rule 34, N.D.R.App.P.-Oral Argument 13
Rule 31, N.D.R.Civ.P.-Depositions of Witnesses Upon Written Questions 13
Rule 33, N.D.R.Civ.P.-Interrogatories to Parties 14
Rule 34, N.D.R.Civ.P.-Production of Documents 14
Rule 36, N.D.R.Civ.P.-Request for Admission 15
Rule 37, N.D.R.Civ.P.-Failure to Make Discovery-Sanctions 15
Rule 38, N.D.R.Civ.P.-Jury Trial of Right 16
Rule 50, N.D.R.Civ.P.-Judgment as a Matter of Law in Actions Tried by Jury 17
Rule 52, N.D.R.Civ.P.-Findings By the Court 17
Rules 54 § 58, N.D.R.Civ.P.-Procedure for Claiming Attorney's Fees 18
Rule 705, N.D.R.Ev.-Disclosure of Facts or Data Underlying an Expert's Opinion 18

CALL TO ORDER

The meeting was called to order at approximately 9:00 a.m., September 28, 1995, by Justice Beryl J. Levine, Chairperson.

ATTENDANCE

Present:

Justice Beryl J. Levine (9/28/95 only)
Honorable Wallace D. Berning
Honorable Bruce E. Bohlman (9/28/95 only)
Honorable Gail Hagerty
Honorable Maurice D. Hunke (9/28/95 only)
Honorable Lawrence A. Leclerc
Honorable James H. O'Keefe
Honorable Kirk Smith
Ms. Patricia R. Ellingson (9/28/95 only)
Mr. Robert C. Heinley


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Mr. Michael R. Hoffman
Mr. John C. Kapsner
Mr. James L. Lamb
Mr. Ronald H. McLean
Ms. Sherry Mills Moore
Mr. James T. Odegard (9/29/95 only)
Ms. Cathy Howe Schmitz

Absent:

Honorable Ronald L. Hilden

Honorable James A. Wright

Professor Larry Kraft

Staff:

Mr. Gerhard Raedeke

PRELIMINARY MATTERS

Meetings are scheduled for January 25-26, 1996 at the Bismarck Radisson; and April 25-26, 1996 at the Fargo Radisson.

APPROVAL OF MINUTES

Mr. Lamb MOVED that the minutes from the Joint Procedure Committee meeting held on April 27-28, 1995, be approved as submitted. Judge Hunke seconded. Motion CARRIED.

RULES 28 § 32, N.D.R.App.P. - WORD LIMITATIONS (PAGES 22-30 OF THE AGENDA MATERIAL).

Staff explained that at the last meeting, the Committee approved the substance of the proposed amendments to Rules 28 and 32, N.D.R.App.P., and instructed staff to draft the proposals.

Committee members again commented that word limitations are the only way to accurately control the length of briefs. Otherwise, attorneys can get around the page limits by using single-spaced footnotes and quotations. The Committee approved the proposals as drafted by staff.

RULE 11(c), N.D.R.Civ.P. - SAFE HARBOR FROM SANCTIONS FOR VIOLATION OF RULE 11 (PAGES 31-33 OF THE AGENDA MATERIAL).

Staff explained that Rule 11(c), N.D.R.Civ.P., as proposed to the Supreme Court, is unclear. The proposal does not address the filing and service of briefs. For instance, is the movant required to serve and file a brief; and if so, when? Is the


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respondent required to serve and file an answer brief; and if so, when?

Committee members suggested filing and service should occur at the same time, and that the rule should provide a motion cannot be considered until 21 days after it is filed. Others countered by saying it would be a waste of the court's time to require documents to be filed that are not going to be contested.

Committee members questioned the need for a brief. Others argued that the motion itself will not contain enough information for the respondent to decide whether to withdraw the allegations. Committee members also noted that the requirement for a brief is consistent with Rule 3.2. The brief may be short.

Judge Hunke MOVED to adopt Rule 11 as proposed on pages 32 and 33. Judge Berning seconded. Motion CARRIED.

Rule 8.3, NDROC - CASE MANAGEMENT - DIVORCE CASES (PAGES 34-57 OF THE AGENDA MATERIAL).

The Committee considered subdivision (a) of proposed Rule 8.3 on pages 42-43. Subdivision (a) requires a compulsory meeting. Within 30 days after the service of the complaint, the parties and their attorneys are required to meet to prepare a joint informational statement and a preliminary property and debt listing.

The Committee questioned the applicability of the rule to pro se litigants in instances where one of the parties is potentially violent. Are the parties required to be physically present in the same room? Others commented that a room would be available in the courthouse, if there is a possibility of violence.

Committee members questioned how a non-resident party, or an incarcerated party, can be expected to be physically present. Members commented that delay and expense would be caused by having to make motions when the parties cannot be physically present.

Committee members questioned whether this rule rushes people into divorce, and creates more trauma for them by requiring them to be physically present for a compulsory meeting and a pretrial conference. Under the current system, a party may never have to make an appearance. The Committee noted that once a party files, the North Dakota Docket Currency Standards, A.R. 12, provides that judgment must be entered within 24 months.

Other Committee members did not think the proposal would rush people into divorce, because judges never decline a stipulation in a divorce case for more time. In addition, people can separate without starting a divorce action and still obtain


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support. Committee members stated the bottom line is that divorce proceedings need to be processed more quickly. Cases will be processed more quickly; because structure will be provided through judicial involvement, and the parties will have all the necessary information sooner. Lives will be saved.

Again, the Committee expressed concern about requiring the parties to meet in person. Committee members questioned why a meeting is necessary in addition to the requirement for mandatory disclosure of information. The response was that a meeting is faster; and because the people are involved in a relationship, it is easier to obtain the information if the communication is more direct. The Committee suggested a meeting of minds, rather than meeting in person.

On page 42, Judge Smith MOVED to amend line 14 to provide:

"[T]he parties and their attorneys shall meet in person or by electronic means to prepare a joint informational statement . . . ."

Judge Hunke seconded. Motion CARRIED. The purpose of the amendment is to allow parties from having to meet in person with their attorneys in the same room. The word "meet" implies simultaneous discourse including e-mail and facsimile transmission, but not ordinary mail.

The Committee questioned whether requiring the joint informational statement to be filed within 5 days after the compulsory meeting gives the parties enough time. Others commented that the joint informational statement just asks for preliminary information and is not that hard to prepare. The Committee decided five days is enough time.

Committee members pointed out that under the proposed rule, the joint informational statement could end up being filed before the complaint. The rule has no requirement as to when the complaint must be filed.

Judge Leclerc MOVED to amend lines 16 through 18 as follows:

"The complaint and joint informational statement must be filed within no later than five days after the compulsory meeting."

Mr. Lamb seconded. Motion CARRIED.

Committee members questioned whether 30 days is enough time to prepare for the exchange of preliminary information at the compulsory meeting. For instance, a defendant gets 45 days to


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answer interrogatories served with a summons and complaint. Specifically, the Committee questioned whether an expense verification could be accomplished within 30 days. The Committee also questioned how verification could be preliminary. Verification requires information to be furnished under oath. Judge Leclerc MOVED to amend lines 21 through 25 to provide as follows:

"At a minimum, the parties shall be prepared to exchange current pay stubs, employment and income information, tax returns, and preliminary pension information and asset, debt and expense documentation."

Judge Hunke seconded. Motion CARRIED.

Committee members questioned whether the meeting should be compulsory. Should parties be allowed to stipulate out of the rule? Committee members were concerned the rule would only be used when convenient for attorneys, if parties are allowed to stipulate out of the rule. The Committee did not think lawyers should be allowed to control the process used. The Committee rejected the idea of allowing parties to stipulate out of Rule 8.3. Committee members commented that parties cannot stipulate out of the rule. The court will impose a sanction, because the court did not get to manage the case.

Committee members commented that requiring the exchange of information by rule is advantageous. Otherwise, the process is dragged out because attorneys have to justify to clients each thread of information asked for and disclosed. It is easier for an attorney to justify the exchange of information to the client if the rule requires the exchange of information.

Committee members questioned whether the rule should only apply to contested divorce cases. Others commented that default divorces and stipulated divorces can be handled before the mechanics of the rule kick in, because the scheduling order is not due until 65 days after the action is commenced. Judge Smith MOVED to amend subdivision (a) on line 12 to provide:

"In all contested divorce cases, within 30 days after service of the complaint, . . . ."

Mr. Heinley seconded. Motion FAILED.

Ms. Moore MOVED to adopt subdivision (a) with the changes approved by the Committee. Judge Hunke seconded. Motion CARRIED.

The Committee considered subdivision (b) on page 43. Subdivision (b) requires the court to issue a scheduling order within 30 days after the informational statement is filed.


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Although a scheduling conference is not required, if a scheduling conference is held, the conference may be done in court or by telephone.

In the informational statement, the parties will indicate whether they need a deadline for completion of mediation/alternative dispute resolution. The Committee questioned whether the scheduling order gives the court powers to order mediation/alternative dispute resolution procedures. It was explained that the rule is not intended to give the court any additional powers in regard to mediation/alternative dispute resolution.

The Committee questioned whether the parties or the court would prepare the scheduling order. Others stated that who generates the form will depend upon the situation, the judge, and the district.

Judges were concerned about setting a specific date for the pretrial conference and trial so far in advance. Scheduling problems will be created. Too much time will be scheduled for divorce trials that will ultimately be resolved without the need for trial. The court's calendar will be clogged.

Members suggested the scheduling order contain the date on which the parties must be prepared, rather than a specific trial date. Specifying a date on which the parties must be prepared would prevent the court from having to set a trial date too far in advance. Yet, a schedule would be imposed. Courts are not being overworked, but over scheduled.

If the court knows the date when the parties must be ready for trial, the court can issue a notice of trial without the need for a note of issue. By knowing when the parties will be ready for trial, the court will set the date for trial accordingly. The court will have time to observe how the case is progressing and whether a trial will be necessary. Judge Hagerty MOVED to amend lines 49-53 to provide:

"(7) A specific date by which the parties will be prepared for the pretrial conference; and (8) A specific date by which the parties will be prepared for the trial, which once set will make the filing of a certificate of readiness and a note of issue unnecessary."

Ms. Moore seconded. Motion CARRIED.

The Committee agreed to a style change by amending lines 30 through 32 to provide:


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"Within 30 days after the informational statement is filed, the court shall issue its scheduling order."

The Committee discussed whether the explanation regarding the filing of a certificate of readiness should be in the explanatory note instead of the rule. The Committee decided to leave the explanation in the rule. The Committee noted that if the court does not notice a date for trial, the parties will have to file a note of issue.

On line 51, Committee members questioned the reason for providing "the trial or final hearing." The Committee did not contemplate that the final hearing in a stipulated divorce would be conducted at this late stage. The hearing in a stipulated divorce case could be done sooner. Ms. Schmitz MOVED to delete the phrase "final hearing" on line 51. Ms. Moore seconded. Motion CARRIED.

Judge Hagerty MOVED to adopt subdivision (b) as amended. Ms. Schmitz seconded. Motion CARRIED.

The Committee considered subdivision (c) on pages 43-44.Subdivision (c) governs the pretrial conference. The rule requires each party to serve and file a pretrial conference statement at least 10 days before the pretrial conference. The parties and their attorneys are required to attend the pretrial conference prepared to discuss settlement.

The Committee questioned whether a pretrial conference should be mandatory. Currently a request for a pretrial conference in a divorce case is an aberration.

Some members expressed concern about a judge conducting a settlement conference if the judge is going to try the case. Others commented that judges are also involved in settlement negotiations under Rule 16 pretrial conferences and immediately before trial.

The pretrial conference has value as a settlement conference, because the issues are more focused and the parties will be at a stage where they are ready to settle. The purpose of encouraging settlement at the pretrial conference instead of immediately before trial is to get the case settled earlier and to reduce the number of settlements immediately before trial.

The primary purpose of the conference is to ensure everything is done. Committee members commented that the settlement language on line 63 is too strong. Language similar to that used in Rule 16 should be used. Settlement should be the goal, not a requirement. Mr. McLean MOVED to amend lines 63 to provide:


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"[T]he parties and attorneys who will try the proceedings shall attend the pretrial conference, prepared to discuss settlement."

Judge Smith seconded. Motion CARRIED.

Committee members questioned why a separate rule on a pretrial conference is necessary when we already have Rule 16 which mandates a pretrial conference if requested. Members commented that the goal is to make the family law rules more functional as a unit. Also, the idea is to make the pretrial conference the norm. The rule gives guidance and structure, otherwise an attorney must justify to his or her client the necessity of a pretrial conference, and the attorney may be accused by the other side of complicating procedures.

Committee members questioned whether having pretrial conferences simply adds another procedure which takes additional time and creates additional expense. Others countered that the rule is moving forward what is done immediately before trial. Settlements will be possible at the pretrial conference, because parties will have the information developed at the pretrial conference instead of just before trial. Pretrial conferences will save time and money because trials will be avoided, and judges will not have their schedules disrupted by having cases settle immediately before trial.

In Subdivision (c)(3), the Committee questioned the requirement for an order identifying contested issues for trial. The Committee commented that the order should not be construed to specifically limit the issues that may be tried at trial. The issues need only be identified in broad basic terms such as whether there is an issue regarding property, support or custody.

The Committee considered proposed Appendix Form D and E on pages 50-57. The Committee concluded that for pretrial conferences to accomplish settlements, Appendix E, the Property and Debt Listing, needs to be completed at the time of the pretrial conference. The Committee decided to combine Appendix Form D and E into one form. The Committee further decided that each party should be required to submit a preliminary draft 10 days before the pretrial conference, and that a joint form should be required to be filed prior to trial.

The Committee thought it would be easier if the same form was used for both the pretrial conference and the trial. Maureen Holman was volunteered, and Judge Leclerc volunteered to work on the combined form. The Committee instructed that the new form include a place for witnesses and exhibits to be listed. The parties will not be bound by the witnesses and exhibits that are listed in the preliminary form for the pretrial conference. Lives are on-going and things will change before trial.


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The primary purpose of the form is not disclosure. The primary purpose is to get commitment from the parties in a scheduled and structured manner. Interrogatories may still be used in divorce proceedings. The Committee also noted that currently a variety of forms are used by different judges and lawyers.

The Committee questioned how Form D is supposed to be completed. Do the husband and wife fill in the blanks for each other? For instance, why would the husband indicate what he thinks the wife thinks the house is worth?

Because Appendix Form D and E are going to be combined, the Committee decided to change the name of the forms. The Committee suggested calling the form a Rule 8.3 statement. A preliminary Rule 8.3 statement will be required for the pretrial conference and a final Rule 8.3 statement will be required for trial.

The Committee discussed whether the final Rule 8.3 statement should be required to be filed a specific number of days before trial. Others commented that flexibility is needed as to when the final Rule 8.3 statement must be filed, depending how far in advance of trial the pretrial conference is held.

Others suggested requiring the final Rule 8.3 statement to be filed at least 10 days before trial unless otherwise ordered by the court. Allowing the court to order otherwise would provide flexibility.

Committee members expressed concern regarding paragraph 3 on page 44. Committee members did not like the language regarding scheduling contemplated motions.

The Committee thought the provision on lines 74 through 76 for exchange of witness lists and exhibits was unnecessary. Witness lists and exhibits will be covered in the Rule 8.3 statement.

Judge Hunke MOVED to adopt subdivision (c) with the changes suggested by the Committee. Judge Smith seconded. Motion CARRIED. Proposed subdivision (c) will provide as follows:

"(c) Pretrial conferences.

"(1) Each party shall complete a pretrial conference statementpreliminary Rule 8.3 statement substantially in the form set forth in appendix D which must be served upon all parties and filed with the court at least 10 days prior to the date of the pretrial conference.


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"(2) Unless excused by the court for good cause, the parties and attorneys who will try the proceedings shall attend the pretrial conference, prepared to negotiate a final discuss settlement. If a stipulation is reduced to writing prior to the pretrial conference, the case may he heard as a default at the time scheduled for the conference. In that event, only the party obtaining the decree need appear. If a party fails to appear at a pretrial conference, the court may dispose of the proceedings without further notice to that party.

"(3) If the parties are unable to resolve the case, in whole or in part, at the pretrial conference, the court shall issue an order which schedules concerning any remaining discovery and any contemplated motions, identifies and identifying the contested issues for trial, and provides for the exchange of witness lists and exhibits to be offered at trial.

"(d) Property and Debt Listing. The (4) Unless otherwise ordered, at least 10 days before trial, the parties shall file a property and debt listing joint final Rule 8.3 statement substantially in the form set forth in appendix E D. Each asset or liability shall must be numbered separately."

The Committee questioned whether paragraph 5 on page 43 is necessary. Paragraph 4 on page 44 provides that the final Rule 8.3 statement is due at least 10 days before trial unless otherwise ordered by the court. The Committee voted to amend paragraph 5 in subdivision (b) as follows:

"(5)A Sspecific dates for completion of the property valuation and the filing of property and debt listing; final Rule 8.3 statement."

The Committee reviewed subdivision (e) on page 45 which pertains to sanctions. Committee members did not like the idea of another rule containing provisions regarding sanctions. The Committee noted that sanctions are already covered in Rule 11.5, NDROC. Mr. Kapsner MOVED to delete subdivision (e). Judge Leclerc seconded. Motion CARRIED.

Ms. Schmitz MOVED to adopt proposed Rule 8.3 as amended. Ms. Moore seconded. Motion CARRIED.


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The Committee reviewed Appendix C on pages 46 and 47.Committee members suggested the form could be written in a more positive tone, so the form is suggesting agreement instead of dispute. The Committee decided to consider Appendix Form C at the next meeting. Committee members were invited to give their suggestions to staff.

RULE 8.5, NDROC - DOMESTIC RELATIONS SUMMARY PROCEEDING (PAGES 58-62 OF THE AGENDA MATERIAL).

Staff explained proposed Rule 8.5 contains a summary procedure for domestic relations cases that are uncomplicated financially. The procedures used are similar to those used in small claims court.

Committee members commented that a summary proceeding should not be available for custody cases. Others explained that if the rule is not available for use in custody cases, the exclusion will eliminate a lot of cases that would really benefit from the summary process.

The Committee noted the rule is to be tried on a trial basis. The Committee questioned how the trial project would be evaluated. Careful records would be needed and the parties should be interviewed. Independent evaluators should be used.

The Committee questioned how a summary proceeding is commenced. Committee members thought a summons should be used. Rule 3, N.D.R.Civ.P., provides a civil action is commenced by service of a summons. The Committee also thought the restraining provisions in a summons for domestic relations proceedings should apply in a domestic relations summary proceeding. The Committee agreed line 14 should be amended to add the word "summons" and line 18 should be amended as follows:

"An action filed under this rule is commenced when any person . . . serves the petition and financial affidavit on the defendant along with a summons and an order for appearance setting a hearing."

Committee members questioned whether a hearing without the rules of evidence comports with due process. Others noted that either party can opt out, so the procedure is essentially by agreement. For example, parties can agree to binding arbitration.

Committee members questioned why an initial hearing is needed. It was explained that an initial hearing is needed to identify issues. The court needs to know what is going on to avoid trouble latter.


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It was explained that there will be a package of forms for use in conjunction with the rule. The forms will be similar to those used in small claims court. The forms will be available at the courthouse, and attorneys will also be supplied with the forms. Litigants will be instructed as how to use the forms. A videotaped explanation is a possibility. The Committee decided to consider the forms after the trial period so that it is a true trial.

The Committee questioned when an action is commenced. The Committee noted that both filing and service is required, and concluded that an action is commenced when both service and filing are completed. Thus, an action would be commenced upon the date of service.

The Committee concluded the judge would have to approximate the time when the order for appearance would be served in order to allow the defendant 10 days after service before the hearing. Small claims court uses the same procedure now and the time of receipt is successfully approximated.

The Committee noted if someone moves for a change of judge, they would have in effect opted out of the rule. The rule is only going to be implemented by designated judges on a trial basis.

The Committee instructed that the phrase "the receipt" be changed to "service" on line 20. Service is the operative time, not receipt. On line 54, the Committee instructed that the word "evidentiary" be eliminated. The rule provides that the rules of evidence do not apply. The Committee also instructed that the word "Southwest" be changed to the word "South central" on line 98.

Ms. Schmitz MOVED that Rule 8.5 be adopted with the amendments instructed by the Committee. Mr. Kapsner seconded. Motion CARRIED.

RULE 31, N.D.R.App.P. - FILING AND SERVICE OF BRIEFS (PAGES 63-66 OF THE AGENDA MATERIAL).

Staff explained the proposed amendment to subdivision (a) clarifies the reply brief must be filed within 14 days after service of the brief of the appellee. If there is less than 14 days until oral argument, the reply brief must be filed at least three days before oral argument.

Judge Hunke MOVED to adopt the proposed rule. Judge Hagerty seconded. Motion CARRIED unanimously. Judge Leclerc MOVED to adopt the explanatory note as proposed. Judge Berning seconded. Motion CARRIED.


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RULE 34, N.D.R.App.P. - ORAL ARGUMENT (PAGES 67-71 OF THE AGENDA MATERIAL).

The Committee considered the proposed amendment to Rule 34. Judge Hunke MOVED to adopt Rule 34 as proposed. Ms. Ellingson seconded. Motion CARRIED.

The Committee considered the proposed explanatory note to Rule 34. Committee members expressed concern about lines 55-57 which advise that severe weather conditions are generally not good cause for postponing oral argument. Committee members were afraid that the provisions will put lives in danger. Lawyers will risk their lives getting to oral argument to avoid malpractice. Committee members thought the Supreme Court should hear argument by telephone when an attorney cannot appear personally due to severe weather conditions. Judges commented that they will hear argument by telephone when weather conditions do not permit a personal appearance. The Committee reviewed the weather policy that is sent to the parties by the clerk of the Supreme Court.

Judge Leclerc MOVED to adopt the proposed explanatory note to Rule 34 with the exception of lines 55 through 57. Mr. Kapsner seconded. Motion CARRIED.

The meeting recessed at approximately 4:30 p.m.

SEPTEMBER 29, 1995 - FRIDAY

The meeting reconvened at approximately 9:00 a.m. Judge Leclerc chaired as Justice Levine was unavoidably absent.

RULE 31, N.D.R.Civ.P. - DEPOSITIONS OF WITNESSES UPON WRITTEN QUESTIONS (PAGES 72-76 OF THE AGENDA MATERIAL).

Staff explained the proposed amendment to Rule 31 follows the 1993 federal amendment by reducing the time needed for taking a deposition upon written questions. The amendment reduces the total time for developing questions from 50 to 28 days.

Mr. Lamb MOVED to adopt Rule 31 as proposed on pages 74 through 76. Judge Smith seconded. Motion CARRIED.

Mr. Odegard MOVED to adopt the explanatory note as proposed. Mr. Kapsner seconded. Motion CARRIED.


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RULE 33, N.D.R.Civ.P. - INTERROGATORIES TO PARTIES (PAGES 77-82 OF THE AGENDA MATERIAL).

Staff explained the proposed amendment changes Rule 33 in the following respects: 1) the amendment provides an interrogatory must be answered to the extent the interrogatory is not objectionable; 2) the amendment provides the parties may agree to a longer time period for answering interrogatories; and 3) the proposed amendment to paragraph 5 provides the grounds for objection must be stated with specificity and that objections must be timely or they are waived.

The Committee noted that Vorachek v. Citizens State Bank, 421 N.W.2d 45 (N.D. 1988), already holds that a failure to serve a timely objection to an interrogatory constitutes a wavier of any objection. The Committee was concerned that practitioners may overlook that both the objection and answer must be made within 30 days, and that any agreement for an extension of time needs to address both the answer and objection.

Judge Hagerty MOVED to approve Rule 33 as proposed. Mr Hoffman seconded. Motion CARRIED.

Mr. McLean MOVED to adopt the explanatory note with the additional language following:

"The Joint Procedure Committee points out that Vorachek v. Citizens State Bank, 421 N.W.2d 45 (N.D. 1988), holds that objections must be served within the time for serving answers. Any extension must be in writing and should specify whether the extension includes answers, objections, or both."

Mr. Odegard seconded. Motion CARRIED.

RULE 34, N.D.R.Civ.P. - PRODUCTION OF DOCUMENTS (PAGES 83-87 OF THE AGENDA MATERIAL).

The proposed amendment allows parties to agree in writing to lengthen the time for production. The proposal also provides that if objection is made to part of a request, inspection must still be permitted as to other parts of the request. Ms. Schmitz MOVED to approve Rule 34 as proposed. Mr. Lamb seconded. Motion CARRIED.

Ms. Schmitz MOVED to adopt the explanatory note. Judge Smith seconded. Motion CARRIED.


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RULE 36, N.D.R.Civ.P. - REQUEST FOR ADMISSION (PAGES 88-93 OF THE AGENDA MATERIAL).

The proposed amendment to Rule 36 allows parties to agree to alter the periods of time for answering requests for admissions.

Mr. Lamb MOVED to adopt Rule 36 and the explanatory note as proposed. Judge Smith seconded. Motion CARRIED.

RULE 37, N.D.R.Civ.P. - FAILURE TO MAKE DISCOVERY - SANCTIONS (PAGES 94-105 OF THE AGENDA MATERIAL).

The Committee considered whether Rule 37(a) should be amended to require litigants to seek to resolve discovery by informal means before filing a motion with the court. The proposed amendment follows the 1993 federal amendment by providing a motion must contain a certification that the movant has in good faith attempted to resolve the discovery dispute.

Committee members commented that requiring attorneys to confer and make a certification is a useless requirement that is a waste of time. Lawyers will not bring a motion unless there is an actual dispute, because it is a waste of their time and effort.

Mr. Kapsner MOVED to reject the proposed amendment on lines 26 through 30, and to adopt the proposed amendment on lines 34-37. Mr. Odegard seconded. Motion CARRIED.

The Committee reviewed lines 38 through 58 on pages 98 and 99. The proposal provides that expenses may be awarded for costs of making a motion if the requested discovery is provided after the motion is filed. Committee members thought the amendment was helpful because it encourages people to respond in the first instance. Others commented that a party may have a good faith belief that the objection is valid until after they get the motion and read the movant's brief. They should not get sanctioned.

The Committee questioned the use of the word "shall" on line 45. Case law indicates that the decision whether to impose sanctions for discovery abuse is discretionary. Other Committee members noted that even though the rule provides "shall" on line 45, the court still has discretion whether to impose sanctions. The rule later provides that the court does not have to award sanctions if the court finds that the response or objection was substantially justified, or that other circumstances make an award of expenses unjust.

Mr. Lamb MOVED to change the word "shall" on line 45 to the word "may" and to put a period after the word "fees" on line 52. Judge Smith seconded.


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Other Committee members argued that the language on lines 52 through 58 should remain in the rule because it gives a framework as to whether sanctions should be awarded. Committee members also argued that the rule should be amended as proposed in order to continue tracking the language of the federal rule, so that federal case law may be used. Mr. Lamb and Judge Smith withdrew their motion.

Mr. Lamb MOVED to adopt lines 38 through 58 as proposed, but with the deletion on lines 52 through 55 of the phrase referencing the good faith requirement to obtain discovery without court action. Mr. McLean seconded the motion. Motion CARRIED.

The Committee reviewed subparagraphs (B) and (C) on lines 59 through 76 on page 99. The proposed amendment provides the court may grant a protective order if a motion to compel discovery is denied in whole or in part. The Committee noted that the provision is currently on lines 34 through 37.

Judge Hagerty MOVED to adopt the language in paragraph 4(B) and (C) on page 99. Mr. Odegard seconded. Motion CARRIED.

Next the Committee considered the proposed change to subdivision (d) on page 103 which provides that a motion for failure to respond to discovery requests is also required to contain a certification that the movant attempted in good faith to resolve the discovery dispute. Mr. Kapsner MOVED to delete the proposed language. Mr. Hoffman seconded. Motion CARRIED.

Ms. Moore MOVED to adopt the change shown on lines 164 and 180. Mr. Kapsner seconded. Motion CARRIED.

Mr. Lamb MOVED to adopt Rule 37 with the changes made by the Committee. Judge Smith seconded. Motion CARRIED.

Ms. Schmitz MOVED to adopt the proposed explanatory note. Mr. Odegard seconded. Motion CARRIED.

RULE 38, N.D.R.Civ.P. - JURY TRIAL OF RIGHT (PAGES 106-110 OF THE AGENDA MATERIAL).

The Committee reviewed the 1993 federal amendment to Rule 38. The federal rule was amended to clarify that a demand for a jury trial must be filed. The filing requirement is made clearer by moving the filing requirement into subdivision (b) with the service requirement in the demand provision, rather than being located in the waiver provision in subdivision (e).

The Committee noted that for case management purposes it is helpful to know soon after filing whether a jury trial is being requested. Committee members thought a problem exists. Often, the


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plaintiff will not notify the defendant when the complaint is filed. In many districts, if a defendant attempts to file an answer before the complaint is filed, the court will not file the answer unless the defendant pays the filing fee. The defendant should not have to pay the filing fee.

The Committee noted that North Dakota's Rule 5(d) is different than federal Rule 5(d). Under Rule 5(d), N.D.R.Civ.P., pleadings must be filed with the clerk at or prior to filing the note of issue. Under Rule 5(d), Fed.R.Civ.P., papers must be filed with the court within a reasonable time after service.

Committee members suggested amending Rule 3 to require the plaintiff to notify the defendants when a case is filed. Mr. Kapsner MOVED to table Rule 38 for the time being. Judge Smith seconded. Motion CARRIED. Mr. Kapsner stated that he would send an alternative proposal to staff for consideration at the next meeting. He was not sure exactly what the proposal would provide. Mr. Kapsner stated that he was considering the possibility of requiring plaintiffs to serve notice of filing upon the defendants, and the possibility of requiring the defendants to file their answer within so many days after service of notice of filing the complaint.

Mr. Kapsner MOVED to adopt the explanatory note to Rule 38. Judge Hagerty seconded.

RULE 50, N.D.R.Civ.P. - JUDGEMENT AS A MATTER OF LAW IN ACTIONS TRIED BY JURY (PAGES 111-117 OF THE AGENDA MATERIAL).

Staff explained that the proposal tracks the 1993 federal amendment by clarifying that judgment as a matter of law may be entered against both plaintiffs and defendants, and with respect to issues that may not be wholly dispositive of a claim or defense.

Mr. Lamb MOVED to adopt the proposal. Judge Smith seconded. Motion CARRIED.

Mr. Odegard MOVED to adopt the explanatory note. Ms. Moore seconded. Motion CARRIED.

RULE 52, N.D.R.Civ.P. - FINDINGS BY THE COURT (PAGES 118-122 OF THE AGENDA MATERIAL).

Staff explained that the proposed amendment to Rule 52 is similar to the amendment to Rule 50. The proposal also follows the 1993 federal amendment and clarifies that judgments as a matter of law may be entered against both plaintiffs and defendants, and with respect to issues that may not be wholly dispositive of a claim or a defense.


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Mr. Lamb MOVED to adopt the proposed amendment to Rule 52. Judge Smith seconded. Motion CARRIED.

Judge Hagerty MOVED to adopt the proposed explanatory note. Ms. Moore seconded. Motion CARRIED.

RULES 54 § 58, N.D.R.Civ.P. - PROCEDURE FOR CLAIMING ATTORNEY'S FEES (PAGES 123-137 OF THE AGENDA MATERIAL).

The Committee reviewed the proposed amendment to Rule 54 which provides a procedure for claiming attorney's fees recoverable under a statute. The proposal provides a claim for attorney's fees must be by motion filed no later than 14 days after notice of entry of judgment. The Committee noted that lines 34-36 would give the court the authority to examine any contingency fee contract when determining the reasonableness of the attorney's fees claim.

The Committee questioned whether the proposal would cover attorney's fees in divorce cases. Others stated that lines 23 through 27 provide that the procedure does not apply when the attorney's fees are an element of damages to be proved at trial. Attorney's fees in divorce actions are part of the substantive law governing the action. Committee members commented that sometimes a special hearing is used to assess the amount of attorney's fees in divorce proceedings. Usually, attorney's fees are put into evidence in an actual trial of the divorce action.

Committee members commented that requiring a motion for attorney's fees to be made within 14 days is a good idea so that there is only one appeal. Committee members were opposed to allowing attorney's fees to be decided after appeal on the underlying action.

The Committee decided to continue its discussion of the procedure for claiming attorney's fees at the next meeting, when more members of the Committee can participate.

RULE 705, N.D.R.Ev. - DISCLOSURE OF FACTS OR DATA UNDERLYING AN EXPERT'S OPINION (PAGES 138-141 OF THE AGENDA MATERIAL).

The Committee reviewed the 1993 federal amendment to Rule 705. The federal amendment is designed to avoid confusion with Rule 26, Fed.R.Civ.P. The terminology is changed in Rule 705, Fed.R.Ev., because federal Rule 26 requires disclosure of the basis of an expert's opinion in advance of trial. Mr. Lamb MOVED to adopt the proposed amendment to keep the language in Rule 705 identical to the federal rule. Mr. Kapsner seconded. Motion CARRIED.


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Mr. Odegard MOVED to adopt the explanatory note. Mr. Lamb seconded. Motion CARRIED.

The meeting adjourned at approximately 11:15 a.m.

Gerhard Raedeke