Joint Procedure Committee Meeting

Scheduled on Thursday, September 29, 1994 @ 10:00 AM

MINUTES OF MEETING

Joint Procedure Committee,

September 29-30, 1994

TABLE OF CONTENTS

Preliminary Matters 2
Approval of Minutes 2
Absentee Plea of Guilty by Misdemeanor Defendant 2
Rule 59, N.D.R.Civ.P. - Memorandum of Decision on Motion for New Trial 5
Derivative Litigation Control 5
Rule 60, N.D.R.Civ.P. - Correction of Clerical Mistakes 6
Rule 3.1, NDROC - Attorney Registration Numbers 6
Rule 16, N.D.R.Crim.P. - Disclosure of Expert Witnesses 7
Rule 1, N.D.R.App.P. - Scope of Rules 9
Rule 12, N.D.R.App.P. - Docketing the Appeal 9
Rule 25, N.D.R.App.P. - Filing and Service 12
Rule 28, N.D.R.App.P. - Briefs 13
Rule 29, N.D.R.App.P - Brief of an Amicus Curiae 16
Rule 30, N.D.R.App.P - Appendix to the Briefs 16
Rule 3, N.D.R.Civ.P. - Commencement of an Action 20
Rule 26, N.D.R.Civ.P. - General Provisions Concerning Discovery 21
Rule 16, N.D.R.Civ.P. - Pretrial Conferences, Scheduling, Management 22
Rule 1, N.D.R.Civ.P. - Scope of Rules 23
Rule 4, N.D.R.Civ.P. - Persons Subject to Jurisdiction - Process - Service 24
Rule 11, N.D.R.Civ.P. - Signing of Pleadings, Motions and Other Papers; Sanctions 24

CALL TO ORDER

The meeting was called to order at approximately 9:00 a.m., September 29, 1994, by Justice Beryl J. Levine, Chairperson.

ATTENDANCE

Present:

Justice Beryl J. Levine
Honorable Bruce E. Bohlman
Honorable Gail Hagerty
Honorable Ronald L. Hilden
Honorable Lawrence A. Leclerc
Honorable James H. O'Keefe
Honorable Kirk Smith
Ms. Patricia R. Ellingson
Mr. Robert C. Heinley
Mr. Michael R. Hoffman


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Mr. John C. Kapsner
Magistrate Dwight C.H. Kautzmann (9/29/94 a.m. only)
Professor Larry Kraft
Mr. James L. Lamb
Mr. Ronald H. McLean
Mr. James T. Odegard

Absent:

Honorable Wallace D. Berning
Honorable Maurice R. Hunke
Honorable James A. Wright
Ms. Cathy Howe Schmitz

Staff:

Mr. Gerhard Raedeke

PRELIMINARY MATTERS

The Committee was informed of upcoming meeting dates; January 26-27, 1995, at the Radisson in Fargo, and April 27-28, 1995, at the Bismarck Radisson.

APPROVAL OF MINUTES

Mr. Odegard MOVED that the minutes of the Joint Procedure Committee meeting of September 29-30, 1994, be approved as submitted. The Motion was seconded by Mr. Heinley. Motion CARRIED.

ABSENTEE PLEA OF GUILTY BY MISDEMEANOR DEFENDANT (PAGES 1-34 OF THE AGENDA MATERIAL)

The Committee discussed whether Rule 11(g), N.D.R.Crim.P., needs to be amended. Rule 11(g) authorizes a misdemeanor defendant to enter a guilty plea through counsel without appearing personally. The Supreme Court is concerned that if the provisions of Rule 11(g) are followed literally, an adequate record may not be created showing that the defendant knowingly and voluntarily waived his or her constitutional rights by pleading guilty.

Some Committee members do not think that an amendment was necessary. If judges are doing their job, there is no problem. A judge has a duty to see to it that a plea is entered knowingly and voluntarily.

It was suggested that a problem may still exist. In State v. Bakke, 498 N.W.2d 819 (N.D. App. 1993), the court held that an attorney may not waive a client's right to a jury trial in a felony case. Committee members expressed concern as to


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whether this holding applies to misdemeanor cases. The defendant may need to sign a form to comply with Rule 23(a), N.D.R.Crim.P. Rule 23 allows a defendant to waive a jury trial in writing or in open court.

The Committee extensively discussed Alternative Proposal No.2 on page 15. Staff explained that Appendix Form 17 would not be required to be used. The form advising the defendant of his or her constitutional rights must only comply with constitutional requirements. Committee members commented that a petition means that the defendant is asking for something. Committee members commented that Alternative 2 does not require that the form advise the defendant of his or her constitutional rights.

Some Committee members commented that the court system is getting bogged down with forms. People should have to stand in front of a judge. Other Committee members commented that requiring a personal appearance for minor offenses is unreasonable. The appearance may be more burdensome than the criminal penalty itself.

Committee members commented that the rule should clarify that there must be a showing that when a defendant enters a plea, the defendant is doing so knowingly and voluntarily. If the form is used by defendants without being represented by counsel, they may not know what they are doing. Other Committee members commented that if the defendants do not understand the form they will not understand the judge's advisement of rights either.

Mr. McLean MOVED to adopt Alternative 2 with the addition of the phrase "pleads guilty pursuant to Rule 43." The proposal would then provide, starting on line 10, as follows:

"In a non-felony case, if the defendant pleads quilt pursuant to Rule 43, a petition to enter a plea of guilty, must be signed by the defendant and filed with the court. See Appendix Form 17."

Mr. Odegard seconded.

Committee members commented that you do not plead guilty pursuant to Rule 43, N.D.R.Crim.P. Rule 43 addresses the presence of the defendant. The defendant pleads guilty pursuant to Rule 11.

Committee members discussed whether there is a distinction between Rule 11(g) and Rule 43(c). Rule 43(c) allows a defendant to plead without counsel if written consent of the defendant is obtained. Rule 11(g) allows the defendant to plead through counsel. Under Rule 43, no one may actually be present in court. The plea may be made through the mail. Under


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Rule 11(g), defendant's counsel appears in court on behalf of the defendant.

Judge Bohlman suggested that the phrase "or the offense charged is not a felony" on lines 8 and 9, should be deleted. Counsel should only be required to put in the plea if the defendant is a corporation. Committee members commented that under Rule 11, a plea can only be entered through counsel. There will be folks who do not have counsel and will still want to use Rule 43 to enter a plea. Judge Bohlman suggested an additional amendment; so that the proposed amendment to Rule 11 provides as follows:

"(g)Plea Put in by Defendant Unless Defendant is a Corporation or Offense a Non-felony. A plea of guilty may be put in only by the defendant, in open court, unless the defendant is a corporation or the offense charged is not a felony, in which case it may be put in by counsel; or in a non-felony case, the defendant may petition to enter a plea of guilty as provided in Rule 43(c). See Appendix Form 17."

Mr. McLean withdrew his motion. Mr. Odegard withdrew his second. Mr. McLean MOVED to adopt the language suggested by Judge Bohlman except that the reference to Appendix Form 17 should be in the explanatory note. The motion was seconded by Mr. Odegard. Motion CARRIED.

The Committee instructed staff to re-draft the explanatory note for the next meeting. The explanatory note is to contain a reference to proposed Appendix Form 17. The Committee discussed whether the explanatory note to Rule 11 should be abbreviated. The Committee decided that the explanatory note to Rule 11 should not be shortened because it contains accurate and useful information. Rule 11 is a three-page rule that generates a significant number of appeals.

The Committee considered the proposed amendment to Rule 43 on page 25. The Committee decided that the proposed reference to Appendix Form 17 should not be in the rule. Staff was instructed to amend the explanatory note for the next meeting by including a reference to Appendix Form 17 in the explanatory note.

The Committee considered proposed Appendix Form 17 on page 31. The proposed form was taken from Minnesota's Rules of Criminal Procedure. On page 32, Committee members questioned the accuracy of the provision about a defendant being entitled to representation by an attorney without cost. The Committee noted that a number of different forms are used. It was suggested that the Committee review the form prepared by the North Dakota Legal Counsel for Indigents Commission at the next meeting.


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RULE 59(f), N.D.R.Civ.P. - MEMORANDUM OF DECISION ON MOTION FOR NEW TRIAL (PAGES 259-263 OF THE APRIL 28-29, 1994, AGENDA MATERIAL)

The Committee reviewed pages 259-263 of the material from the April 28-29, 1994 meeting of the Committee. At the end of that meeting, the Committee was considering a proposal to amend Rule 59, N.D.R.Civ.P. But, the Committee ran out of time before a vote could be taken. Judge Leclerc had MOVED to eliminate the requirement for a memorandum of decision on a motion for new trial. Judge O'Keefe had seconded the motion.

At this meeting, the Committee continued its discussion. The Committee noted that neither Minnesota or the federal rules require a memorandum of decision on a motion for new trial. Committee members argued that requiring a memorandum slows down the process, because it takes time to get the judge's opinion. A memorandum of decision is not needed. The Supreme Court can determine the grounds for denying or granting the motion from the briefs. Also, the grounds for motions are required to be stated with particularity.

Other Committee members argued that the Supreme Court would never approve the proposal. A memorandum of decision is important for review purposes. Also, requiring a memorandum of decision requires the trial court judges to think about their reasons for granting or denying the motion.

A vote was called on the motion made at the previous meeting. Motion failed.

DERIVATIVE LITIGATION CONTROL (PAGES 35-46 OF THE AGENDA MATERIAL)

The Committee discussed whether the provisions on derivative litigation control should be collected in one rule of procedure modeled after Rule 23.1, Fed.R.Civ.P. Currently, North Dakota's derivative litigation controls are found in North Dakota's Business Corporation Act, North Dakota's Limited Liability Company Act, and North Dakota's Uniform Partnership Act.

The Committee reviewed federal Rule 23.1, and various statutes on derivative litigation control in North Dakota. The Committee noted that the controls found in the statutes vary depending upon the type of entity involved. Committee members commented that in North Dakota, a rule is not needed about acquisition of federal jurisdiction as in Rule 23.1, Fed.R.Civ.P. The Committee did not think verification of the complaint was necessary either. Some Committee members commented that there should be a specificity requirement for the complaint.


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Committee members questioned what should remain in the statutes and what should be taken out. The Committee also questioned which provisions should apply to which types of entities. Committee members expressed concerned that many of the provisions in the statutes are substantive. Committee members commented that the contemporaneous shareholder requirement, and the provisions for payment of reasonable expenses in the statutes are substantive provisions. The Committee questioned whether a rule can authorize payment of attorney's fees if that right is not already provided by statute. Usually attorney's fees are only authorized pursuant to contract or statute.

The Committee was confused as to what Professor Lee had in mind when he proposed creation of a procedural rule governing derivative litigation in North Dakota. The Committee instructed staff to consult with Professor Lee.

RULE 60, N.D.R.Civ.P. - CORRECTION OF CLERICAL MISTAKES (PAGES 47-52 OF THE AGENDA MATERIAL)

The Committee considered Judge Berning's request to expressly require a notice of motion to be served and filed with a motion for correction of a clerical mistake. Committee members cautioned that specific notice requirements should not be contained in some rules, but not in other rules. The Committee also noted that all motions are already required to be noticed under Rule 6, N.D.R.Civ.P., and Rule 3.2, NDROC. In addition, Rule 5, N.D.R.Civ.P., requires motions to be served on other parties.

Mr. Heinley MOVED to reject the proposed amendment to Rule 60. Judge Leclerc seconded. Motion CARRIED.

RULE 3.1, NDROC - ATTORNEY REGISTRATION NUMBERS (PAGES 53-61 OF THE AGENDA MATERIAL)

The Committee considered Judge Leclerc's proposal to amend Rule 3.1, NDROC, to require pleadings and other papers to contain the attorney's registration numbers. Judge Leclerc suggested that a rule of court be adopted, so that the attorney registration number requirement would be applicable to both civil and criminal cases. The proposal would make it easier to access the attorney's address and telephone number by computer. Going by the registration number would also avoid confusion in regard to attorneys with identical or similar names.

The Committee questioned whether the attorney registration number in the directory published by the State Bar Board contains the same registration number that appears on an attorney's bar membership card. The Committee suggested that staff talk to Penny Miller to determine her use of the numbers.


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The Committee also questioned what information would be accessible through use of attorney registration numbers.

Professor Kraft MOVED to adopt the proposal on page 59 with one change. The title of subdivision (b) should be changed from the word "signing" to the word "signature." Judge Smith seconded the motion. Motion CARRIED.

Staff questioned whether Rule 11 should also be amended to require attorney registration numbers. Rule 11 also contains a signature requirement. The Committee seemed in favor of also amending Rule 11 to contain an attorney registration number requirement. The Committee will be considering Rule 11 later when it considers the 1993 federal amendment to Rule 11.

RULE 16, N.D.R.Crim.P. - DISCLOSURE OF EXPERT WITNESSES (PAGES 62-84 OF THE AGENDA MATERIAL)

Staff explained that Rule 16, F.R.Crim.P., now requires reciprocal disclosure of expert witnesses. The Committee considered a proposal to amend North Dakota's rule to require disclosure of expert witnesses as provided in the 1993 federal amendment.

Currently Rule 16, N.D.R.Crim.P., requires disclosure of the prosecution's expert witness, and disclosure and access to reports or results from an examination or testing conducted by experts of either party. The proposal would require disclosure of experts regardless of whether they have conducted an examination or other testing.

Committee members commented that it does not happen very often that the prosecution is surprised by a defense expert. However when it does happen, effective cross-examination is difficult. Whether the prosecution will be able to obtain a continuance or have the chance to offer rebuttal witnesses is questionable.

Committee members questioned whether there is an appropriate sanction for failure to disclose without prejudicing the defendant for misconduct by his or her attorney.

Some Committee members thought that fairness requires disclosure by both sides. Other Committee members stated that the bottom line is that the state has the burden of proof. In addition, often the defendant does not get the same chance to make tests as does the prosecution. For instance, often the defendant will not get an adequate blood sample in a timely manner. The state already has the advantage.

Committee members questioned whether the state has a right to a fair trial. Committee members noted that the state


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can demand a jury trial even if the defendant wants a court trial; and the state has a right to an impartial jury.

Committee members commented that under the federal system, there is less disclosure by the prosecution than under North Dakota's Rule 16.

Committee members criticized the stench created by experts in the courtroom. Committee members thought that it was unfair for the state not to be able to combat the stench by having the opportunity to prepare for cross-examination. Other Committee members questioned whether a criminal trial is really a search for the truth.

Committee members stated that the defense usually will not use experts unless the state has them. A criminal defendant should only have to defend. A criminal defendant should not have to prepare the state's case. If a criminal defendant discloses his or her experts, the state will prepare its case differently. A defense attorney would risk malpractice by not requesting disclosure of the prosecution's expert witnesses; thus, under reciprocal discovery, the defendant would be forced to disclose its experts in every case.

Committee members commented that the duty to disclose should only go to affirmative defenses. Other Committee members argued that the state should be allowed to prepare its case differently to counter the expert testimony of the defense. The privilege against self-incrimination does not apply to expert testimony; and it does not apply in any event, because the disclosure required would be information that would ultimately be revealed at trial.

Other members argued that the defendant would lose his or her option as to whether to call expert witnesses. The defendant may have expert witnesses, but may not wish to call them. The proposed amendment would force the defendant's hand.

Committee members commented that a criminal trial is not a search for the truth. If that were the case, there would not be a privilege against self-incrimination. The sides are unequal. The defendant has the presumption of innocence. In addition, the defendant does not usually have the power and resources of the state.

Committee members commented that requiring disclosure of the defendant's expert witnesses would be unfair. The state will go and talk to the defendant's expert witnesses. The defendant's expert witnesses will be threatened with impeding a continuing criminal investigation.

Committee members questioned whether a written summary should be required. Other Committee members commented that if


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you do not have the written summary of the expert's testimony, meaningful cross-examination cannot be achieved.

Judge Hagerty MOVED to adopt the proposed amendment to Rule 16 as set forth on page 66-70 of the material. Professor Kraft seconded. Motion FAILED by a vote of five in favor and nine opposed.

Mr. McLean proposed the same motion with an additional sentence at the end of subparagraph (c) on page 69. Mr. McLean proposed the additional sentence following:

"There shall be no discovery of facts known or opinions held by defendant's experts other than as contained in the written summary except by order of the court."

Judge Hagerty seconded the motion, but suggested that the phrase "no contact" should be used instead of the phrase "no discovery." Police officers will not think they are conducting discovery when they attempt to question the defendant's experts. Motion FAILED by a vote of six in favor and eight opposed.

Mr. Lamb MOVED to adopt the proposed deletions to the explanatory note to Rule 16 without reference to the proposed amendment that failed. Judge Leclerc seconded. Motion CARRIED.

The meeting recessed for lunch at approximately 12:00 noon.

RULE 1, N.D.R.App.P. - SCOPE OF RULES (PAGES 85-88 OF THE AGENDA MATERIAL)

The Committee considered the proposal to amend Rule 1. The proposal eliminates the definition of a trial court as a county court or district court. The definition will no longer be necessary after court consolidation. The proposed amendment to subdivision (d) defines who is appellant and who is appellee in the scope of the rules. The definition is not changed. Currently the definition is found in various places within the rules.

Mr. Lamb MOVED to adopt Rule 1 as proposed. Judge Smith seconded. Motion CARRIED. Judge Smith MOVED to adopt the proposed explanatory note. Mr. Lamb seconded. Motion CARRIED.

RULE 12, N.D.R.App.P. - DOCKETING THE APPEAL (PAGES 89-94 OF THE AGENDA MATERIAL)

Staff explained the proposal. The proposed amendment to subdivision (a) requires the clerk of the Supreme Court to docket the appeal upon receipt of the notice of appeal. Under


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the current rule, the clerk dockets the appeal upon receipt of the docket fee. The purpose of this amendment is to eliminate administrative confusion, and the risk that an appeal may be lost due to an untimely filing caused by a mistake regarding the docket fee. The safer practice is for the clerk to docket all appeals. The proposed amendment to subdivision (a) also lists the categories of cases not requiring a docket fee.

The Committee questioned the language in paragraphs (4) and (5) of subdivision (a). The Committee questioned why the double requirement that the person be indigent and counsel court-appointed. The Committee noted that in some cases a person may be indigent, but may not want court-appointed counsel. Other Committee members commented that paragraph (7) already provides for wavier of the docket fee for indigency.

Committee members commented that in juvenile court, the juvenile does not have to be indigent to have court-appointed counsel. Counsel is appointed and the parents are later charged for the attorney's fees.

Committee members questioned where the docket fee would be paid under the proposal. The current rule says that you pay the docket fee in the trial court. The proposed rule is unclear. Committee members indicated that some trial courts will not accept the docket fee. Staff stated that the Supreme Court clerk may be submitting another proposal that will require the docket fee to be paid to the Supreme Court and for the notice of appeal to be filed directly with the Supreme Court.

Committee members questioned the purpose of the amendment. If the problem is that the clerk of the Supreme Court receives appeals without the docket fee, the rule should be enforced, and people should be made to pay the docket fee in a timely manner.

Committee members noted that the exceptions in 2 and 3 for post-conviction relief and writs of habeas corpus need to be listed because technically they are not criminal cases.

Mr. Kapsner MOVED to adopt the proposed changes on lines 3-9, and that the remainder of the proposed language in subdivision (a) should not be adopted, and that all the deleted material on lines 81-46 should remain part of the rule. Motion FAILED for lack of a second.

Mr. Hoffman MOVED to adopt the clerk of the Supreme Court's proposal in subdivision (a). Professor Kraft seconded. Judge Leclerc MOVED to amend the motion by deleting on line 19 the phrase, "and counsel is court appointed," and on lines 20-21 the phrase, "the juvenile is indigent and." Professor Kraft seconded. The Motion CARRIED to amend the motion. Judge Leclerc MOVED to amend the amended motion by deleting the examples on lines 24-26. Examples should not be in the rule,


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they belong in the explanatory note. The motion to amend the amended motion CARRIED. The motion carried to adopt the amended motion.

Staff explained that the proposed amendment to subdivision (b) would provide that a motion for dismissal for failure to pay the docket fee must be supported by (1) certified copy of the judgment, (2) a certified copy of the notice of appeal, and (3) proof of service of the notice of appeal. Currently, a certificate of the clerk of required.

Mr. Odegard MOVED to adopt the proposed amendment to subdivision (b). Mr. Kapsner seconded. The motion CARRIED.

Committee members questioned how the appellee will know whether the appellant has paid the docket fee. It was explained that the clerk of the Supreme Court sends out a letter advising that the docket fee has not been paid and that the docket fee must be paid or the appeal will be dismissed. Committee members noted that if a party makes a motion to dismiss, the other party will respond by filing the docket fee. Subdivision (b) is not going to be used very often.

The Committee reviewed the explanatory note to Rule 12. The Committee questioned where the docket fee is to be paid. Under subdivision (a) the rule now says when the docket fee must be paid, but does not say where the docket fee must be paid. Committee members suggested requiring the docket fee to be paid to the clerk of the trial court. Other Committee members said such language would be misleading because the check is to be made payable to the clerk of the Supreme Court according to the explanatory note.

Mr. Kapsner MOVED to amend lines 9 and 10 so that the language will provide as follows:

"The appellant shall deposit the docket fee with the clerk of the trial court at the time the notice of appeal is filed."

Mr. Kapsner argued that you have to tell people where to file the docket fee, and that you cannot leave it open. Judge Smith seconded the motion. Motion CARRIED.

Ms. Ellingson MOVED to insert the language from the explanatory note on lines 80-82 which provides as follows:

"A check or money order in the amount of the docket fee should be made payable to the clerk of the Supreme Court."

Ms. Ellingson MOVED that the language be inserted after the sentence ending on line 10. Mr. Kapsner seconded the motion. Motion CARRIED.


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Mr. Kapsner MOVED to adopt the explanatory note with the deletion of lines 80-82. Mr. Odegard seconded. Motion CARRIED.

RULE 25, N.D.R.App.P. - FILING AND SERVICE (PAGES 95-98 OF THE AGENDA MATERIAL)

The Committee considered the proposed amendment to Rule 25. The amendment provides that a petition for rehearing is deemed filed on the day of mailing. Staff explained that currently there is confusion. Many attorneys consider the petition for rehearing to be a brief and mail the petition on the day it is to be filed which results in an untimely filing.

Committee members thought that the rule was an absurdity. No other rule provides that the date of mailing constitutes the date of filing. It would be better to specify when something must be served, rather than making a special exception that causes confusion. The date of service should be the operative date instead of making confusing exceptions. Filing is filing.

Committee members questioned the language on lines 10 and 11 requiring the most expeditious form of delivery by mail. Committee members noted that there are other types of special delivery besides mail such as federal express. Committee members also noted that third class mail is as fast as first class mail within North Dakota.

Mr. McLean MOVED to adopt the proposed amendment to Rule 25. Mr. Kapsner seconded.

Mr. Kapsner MOVED to put a period after mailing on line 10 and to delete the phrase "if the most expeditious form of delivery by mail, excepting special delivery, is utilized." Mr. Odegard seconded. The motion to amend CARRIED. The amended motion also CARRIED.

The Committee reviewed subdivision (d) of Rule 25. The Committee questioned why proof of service must be in the form of an affidavit. A certificate of attorney should be sufficient as allowed in the rules of civil procedure.

Professor Kraft MOVED to delete the phrase "in the form of an affidavit" on lines 32 and 33. Mr. Hoffman seconded. Motion CARRIED.

The Committee instructed staff to explain the amendment to subdivision (d) in the explanatory note. No motion was made in regard to the explanatory note.


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RULE 28, N.D.R.App.P. - BRIEFS (PAGES 99-109 OF THE AGENDA MATERIAL)

The Committee considered the proposed amendment to subdivision (a) of Rule 28. The Committee questioned why a jurisdictional statement should be required in the appellant's brief other than in original jurisdictional cases. Committee members stated that the federal rule contains a requirement for a jurisdictional statement because federal court jurisdiction is more limited than state court jurisdiction. Committee members also commented that requiring a jurisdictional statement would not be an enforceable requirement. Requirements for briefs are not enforced. It is senseless to load up a rule with requirements for briefs that will basically be unenforceable. Other Committee members thought that requiring a jurisdictional statement would prevent people from filing appeals that are not appealable.

Judge Leclerc MOVED that the Committee reject the proposed amendment to subdivision (a)(2). Judge Bohlman seconded. Motion CARRIED.

The Committee considered whether the parties should be required to include a statement of the applicable standard of review in their briefs. The purpose of the amendment would be to make parties more aware of their burden of proof. Other Committee members were opposed to increasing the requirements as to what must be in a brief. Mr. Kapsner MOVED not to adopt any of the proposed language on lines 31-49. Judge Leclerc seconded. Motion CARRIED. The Committee did not think that requiring a statement of the applicable standard of review would deter an appeal or an argument that the parties desire to make.

The Committee considered the proposed amendment to subdivision (c). Staff explained that the proposed amendment is intended to clarify that the appellant may only file a single reply brief. Currently, the rule is misinterpreted and appellant's counsel commonly file a single reply brief for each appellee's brief. Mr. Kapsner MOVED to adopt subdivision (c). Mr. McLean seconded. Motion CARRIED.

Committee members questioned how many reply briefs can be filed when there is more than one appellant. Other members commented that the way the rule defines appellant, there can be only one appellant. Committee members suggested that the rule is really not addressing cases where there is more than one appellant.

Committee members questioned whether lines 56-57 should be deleted. Parenthetical phrases should not be in the rule. Judge Leclerc MOVED to delete the parenthetical phrase on lines 56-57. He further MOVED that the language on lines 54-56 should provides as follows:


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"Except as provided in subdivision (h), no other briefs may be filed without leave of the court."

Judge O'Keefe seconded. Motion CARRIED.

The Committee considered the proposed amendment to subdivision (e). The amendment requires that references to the record be made to the docket number. Because of the reference in subdivision (e) to Rule 30(f), the Committee reviewed Rule 30(f) on page 132.

Rule 30(f) provides for hearing of appeals on the original record. The Committee questioned what constitutes the original record. Committee members thought that the phrase "original record" refers to the record from the trial court. It was suggested that the court never hears appeals on the original record. The answer is always "no" to such a request. Judge Leclerc MOVED to adopt the proposed deletion of Rule 30(f). Judge Smith seconded. Motion CARRIED.

Committee members suggested that the second sentence in Rule 28(e) provide as follows:

"If references are made in the briefs to part of the record not reproduced, the references must be to the docket number of that part of the record."

The Committee suggested deleting the language on lines 78-80 which provides as follows:

"If the record is reproduced in accordance with the provisions of Rule 30(f), or if"

The Committee also suggested that the examples set forth on lines 83-85 should be removed from the rule and placed in the explanatory note. The sentence on lines 84 and 85 regarding other intelligible abbreviations should also be removed to the explanatory note.

Mr. Odegard MOVED to adopt subdivision (e) with the changes suggested by the Committee. Mr. Lamb seconded. Motion CARRIED.

The Committee reviewed the proposed amendment to subdivision (g). The proposed amendment pertains to the length of the brief and provides that proof of service is not counted as one of the pages. The Committee noted that it did not adopt the requirement that proof of service be contained in the brief under subdivision (a). The Committee thought that it should be sufficient to file one proof of service with all eight of the briefs that are filed with the court. The Committee did not think that it should be required to include proof of service in each brief.


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Professor Kraft MOVED to delete the sentence starting on line 105 and continuing through 110. The sentence is grammatically incorrect, and it is not really helpful to have a rule requiring lawyers to edit carefully for conciseness. Judge Bohlman seconded. Motion CARRIED.

Judge Leclerc MOVED to delete the phrase "proof of service" on line 101. Mr. Kapsner seconded. Motion CARRIED. Judge Leclerc MOVED to adopt proposed subdivision (g) with the changes made by the Committee. Jim Odegard seconded. Motion CARRIED.

The Committee considered the proposed amendment to subdivision (h). Judge Leclerc MOVED to adopt the changes proposed on lines 111-140, except that the word "involving" on line 111 should be changed to the word "in." Mr. Odegard seconded. Motion CARRIED.

Committee members questioned whether more than ten pages should be allowed when a cross-appeal is filed. Sometimes the cross-appeal can involve a tremendous issue. Other Committee members noted that permission for an extension of page limits can be requested.

The Committee reviewed the proposed amendment to subdivision (i). The Committee had problems with the language in subdivision (i). The Committee questioned how there can be more than one appellant given the definition of "appellant" in proposed Rule 1. The Committee questioned whether there is not more than one appellant in a consolidated case where there are three plaintiffs and they each file their own notice of appeal from their own separate judgment. The Committee questioned whether all three plaintiffs would be appellants in the consolidated appeal. The Committee suggested amending subdivision (i) to provide as follows:

"(i) Briefs in Cases Involving Multiple Appellants or AppelleesParties. In cases involving more than one appellant or appellee, including cases consolidated for purposes of the appeal, any Anynumber of either parties may join in a single brief, and any appellant or appellee or may adopt by reference any part of the another's brief or another. Parties may similarly join in reply briefs."

The Committee thought that the proposed sentence starting on line 148 was already covered in subdivision (h). Judge Hagerty MOVED to adopt the suggestions made by the Committee. Ms. Ellingson seconded. Motion CARRIED.

The Committee expressed additional concern about the definition of appellant in proposed Rule 1. The Committee questioned how there could be only one appellant. The proposed amendment to Rule 1 needs work.


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No motion was made to adopt the explanatory note. The Committee will review the explanatory note at the next meeting.

RULE 29, N.D.R.App.P. - BRIEF OF AN AMICUS CURIAE (PAGES 110-112 OF THE AGENDA MATERIAL)

The Committee considered the proposal to amend Rule 29. The proposal eliminates the provision allowing counsel to stipulate to the filing of an amicus curiae brief. Under the proposal, an amicus curiae brief may only be filed with leave of court.

Committee members commented that Rule 27 does not need to be cross referenced. (Rule 27 provides the requirements for motions). Committee members suggested that the word "curiae" be eliminated on line 10, and that the sentence on lines 12-16 should be amended to provide as follows:

"Any amicus curiae brief shall must be filed his within the time allowed the party whose position as to affirmance or reversal the amicus brief will support unless all parties otherwise consent or the court for good cause shown grants leave for later filing."

Judge Leclerc MOVED to adopt the proposed amendment to Rule 29 with the suggestions made by the Committee. Ms. Ellingson seconded. Motion CARRIED.

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

RULE 30, N.D.R.App.P. - APPENDIX TO THE BRIEFS (PAGES 113-134 OF THE AGENDA MATERIAL)

Staff summarized the two alternative proposals to amend Rule 30. The first proposal is on page 114 and is in accordance with the instructions given by the Committee at the January 1993 meeting. The first alternative allows each party to prepare their own appendix. The second proposal on page 127 was submitted by the clerk of the Supreme Court. The second alternative requires that any written agreement as to the contents of the appendix to be filed, or for the designation of the parts of the record to be filed.

Committee members commented that in practice, Rule 30 is not working. When an appellee is writing his or her brief, invariably the appellee will want to make reference to a document that was left out of the appendix. The appellant's brief focuses the issues, and at that point the appellee often has the need for additional documents. Committee members also commented that Rule 30 does not work because of the cooperation it requires between advocates.


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The Committee questioned whether filing a written agreement as to the contents of the appendix, or filing the designation of the parts of the record, will really result in more meaningful control by the Supreme Court. The Committee did not think that the clerk of the Supreme Court's proposal would resolve the problem. The clerk's proposal is still trying to get people to agree and designate parts of the record for inclusion in the appendix.

Committee members questioned why the clerk of court would want the written agreement or designation of the parts of the record filed in every case. The agreement or designation of the parts of the record should only be filed in those cases where there is a dispute.

The Committee noted that the present rule does not work because appropriate sanctions are not imposed for violation of the rule.

Committee members questioned why allowing two appendices will be a problem. Each party should be allowed to put in what they want at their own expense. Any rule that assumes cooperation between attorneys is doomed.

It was suggested that having two appendices would create extra clerical work for the clerk of the Supreme Court. They will have to go through two appendices instead of one. In addition storage space is a problem. Other Committee members commented that two small appendices will not take up any more space than one large appendix as long as there is not duplication. Committee members commented that it is easier for the clerk to check the appendices for duplication than for the parties to work out an agreement.

Committee members commented that appellants often do not designate parts of the record for inclusion in the appendix, because they wait to long before they begin preparing their brief. They do not know what documents they are going to include in the appendix until they begin preparation of their brief. At that time, there is not enough time for them to get a designation from the appellee.

Judge Bohlman MOVED to adopt subdivision (a) and (b) on pages 114 through 117. Mr. Kapsner seconded.

Committee members suggested cross-referencing whatever is in the appendix to the record. There is a problem with people including documents in the appendix that are not part of the record. Other Committee members commented that it is to burdensome for attorneys to cross-reference everything in the appendix to the record. Committee members questioned whether there should be a rule providing that everything in the appendix must be part of the record. Other Committee members thought that the court should impose sanctions if documents are included


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in the appendix that are not part of the record. A rule is not needed.

Committee members suggested requiring consecutive numbering if more than one appendix is allowed. Other Committee members thought that consecutive numbering would be too confusing and that it would be just as easy when drafting a brief to cite to the appellant's appendix or the appellee's appendix.

Some Committee members suggested allowing the appellee to use an addendum as an appendix. Other members questioned the effectiveness of an addendum when the appendix is lengthy. Committee members expressed concern about ending up with two rules, one for appendix material included in an addendum and one for appendix material included in appendix. Other Committee members commented that Rule 28(f), N.D.R.App.P., implies that the addendum contains documents that are not part of the record like a statute.

Committee members commented that in cross-appeals a potential exists for three or four appendices. Other Committee members noted that it would not be necessary to have additional appendices, because references could be made to the record. Appendices are for the convenience of the court.

Judge Leclerc MOVED to table discussion of Rule 30 until the following morning. Mr. Lamb seconded. Motion CARRIED.

The meeting recessed at 4:15 p.m.

September 30, 1994 - Friday

Justice Levine reconvened the meeting at approximately 9:00 a.m.

Committee members commented that the problem was not with Rule 30, but rather the enforcement of the rule. It was suggested that the court should award costs sua sponte when a party has not complied with the rule.

Other Committee members argued that the problem with Rule 30 is more than a lack of cooperation between the parties. The designation of the parts of the record is required before the parties know what documents they need included in the appendix. The appellant's brief is not due until thirty days after the designation of parts of the record is required to be served. The appellee's brief is not due until fifty days after the appellee's designation of the parts of the record is due.

Committee members questioned whether multiple appendices are used in the federal system. Committee members commented that the federal courts enforce their rule. Other


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Committee members noted that the federal rules now allow each party to prepare their own appendix in criminal cases.

Judge Bohlman renewed his motion to adopt subdivision (a) and (b) of Rule 30 on pages 114-117. Mr. Kapsner seconded. Motion CARRIED.

The Committee reviewed the provisions on page 117, lines 90-94, pertaining to the cost of producing an appendix. The Committee thought that the appellant should not be taxed costs for material in the appendix of the appellee that is duplicative. The Committee noted Rule 39(e), N.D.R.App.P., which provides costs for preparation of briefs. Staff suggested that the following language be substituted on lines 90-94:

"The costs of producing an appendix may be taxed as costs in the case unless the appendix contains unnecessary material."

Mr. Kapsner suggested the language following:

"The cost of producing an appendix may be taxed as costs in the case, but if either party causes matter to be included in an appendix unnecessarily the court may impose the costs of producing those parts on that party."

The Committee did not think that the prevailing party should be awarded costs for preparation of an appendix if matter is included unnecessarily in the appendix.

Judge Bohlman MOVED to eliminate lines 90-94. Mr. McLean seconded. The Committee questioned whether costs would be taxable if lines 90-94 are eliminated. Other Committee members responded that the court still has authority to tax costs, and under Rule 13 the court can award sanctions. Mr. McLean seconded. Motion CARRIED. The Committee reviewed the proposed amendment to subdivision (c) on page 117. Subdivision (c) allows the preparation of an appendix to be deferred. The proposed amendment provides that references in the brief are to be to the parts of the record involved.

Committee members commented that they had never seen the provision used, and that it is a useless provision. Other Committee members said that it should be available as an alternative in case there is a reason why an appendix cannot be prepared before the brief is due. References will need to be made to the parts of the record involved. Mr. Kapsner MOVED to adopt proposed subdivision (c) on pages 117-119. Mr. Hoffman seconded. Motion CARRIED.


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The Committee reviewed the proposed amendment to subdivision (d). The proposal provides that appendix more than fifty pages long may be prepared as double-sided copies. Mr. Kapsner MOVED to adopt subdivision (d). Mr. Hoffman seconded. Motion CARRIED.

Judge Leclerc MOVED to delete the word "reporter" on line 147. After Rule 10, N.D.R.App.P., is amended, people other than a "reporter" will be preparing the transcript. Judge Hagerty seconded. Motion CARRIED.

The Committee reviewed proposed subdivision (f) on page 120. Committee members commented that the court already has the power to issue sanctions under Rule 13. The Committee was afraid about creating an inference that if Rule 13 is not cited in a rule, sanctions cannot be imposed. Other Committee members thought that it was silly to continually threaten to sanction lawyers when the court already has all the power it needs to issue sanctions under Rule 13.

Judge Smith MOVED to put a reference to Rule 13 sanctions in the explanatory note, and to reject proposed subdivision (f). Mr. Odegard seconded. Motion CARRIED.

RULE 3, N.D.R.Civ.P. - COMMENCEMENT OF AN ACTION (PAGES 152-164 OF THE AGENDA MATERIAL)

The Committee discussed whether there should be earlier and more intensive judicial management of cases. Members of the Committee expressed frustration over their inability to process cases that are not filed. Concern was expressed regarding the public's perspective that the judiciary is failing when cases are three to four years old and they have not been prosecuted.

Committee members suggested that a change to Rule 3 is necessary if there is going to be effective case management. Otherwise, the court does not have the opportunity for case management.

Comments submitted to the Committee were reviewed. It was noted that both the North Dakota Trial Lawyers Association and the North Dakota Defense Lawyers Association are opposed to any amendment to Rule 3. Collection attorneys are also opposed to any amendment to Rule 3. There are thousands of active collection litigation files. Seventy to ninety percent of these acted cases are never filed. Administratively, courts would be overwhelmed if all cases were filed. The federal system does not have the number or type of cases that exist in state court.

It was noted that South Dakota and Minnesota allow commencement by service. Montana requires commencement by filing, but has a special justice court to handle collection cases.


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Committee members questioned why the summons and complaint could not be required to be filed within six months after service. Other Committee members responded that the payment plans used by collection attorneys often extend beyond six months. Committee members also stated that a statute of limitations trap would be created.

Committee members questioned whether there was a significant enough of a problem to require an amendment to Rule 3. A greater problem with case management would be created by overwhelming the courts with all the cases that are now commenced but not filed. In addition, there may be valid reasons for cases that are five to six years old without being filed. Judicial involvement may not be desirable.

Committee noted that proposed amendment to Rule 45 will require that a case be filed before a subpoena may be issued.

Mr. Kapsner MOVED to reject any proposed amendment to Rule 3. Ms. Ellingson seconded. Motion CARRIED.

RULE 26, N.D.R.Civ.P. - GENERAL PROVISIONS CONCERNING DISCOVERY (PAGES 244-283 OF THE AGENDA MATERIAL)

The Committee studied the 1993 federal amendment to Rule 26. Staff reviewed the promulgation process through which the federal rule was adopted. The Committee noted that almost all of the comments received by the federal advisory committee were negative, that several Supreme Court justices dissented, and that the U.S. House of Representatives deleted the controversial amendment.

The Committee also noted that the civil justice delay and expense reduction plans were just going into effect on December 1, 1993. The reports comparing the experience throughout the districts under the Civil Justice Reform Act will not be submitted to congress until December 31, 1995. The resulting changes will not become effective until December 1998. The Committee also noted that 48 of 94 federal district courts had opted out as of January 25, 1994. The U.S. District Court for North Dakota adopted Rule 26 by standing order but opted out for certain categories of cases.

Committee members expressed frustration with how difficult the federal rule is to use. The Committee questioned how parties will know what information is relevant to facts alleged with particularity. The plaintiff has the advantage, because the plaintiff already has the case ready. It is difficult for the defense to come up with the information. Determining what is relevant to the theories of opposing counsel is impossible for the lawyer. The lawyer loses control of discovery. The client ends up determining what is relevant.


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The Committee members liked the provision of the federal rule requiring the disclosure of insurance policies. Committee members also liked the requirement of the federal rule allowing expert witnesses to be deposed.

Committee members commented that North Dakota's rule should be amended to authorize expert witness depositions. Deposing experts helps settle cases. Increasingly, plaintiffs are using Rule 26(b)(4)(A)(ii) to object to expert witness depositions.

Mr. McLean MOVED that staff be directed to draft a proposed rule that would provide that discovery depositions of expert witnesses may be done, subject to a motion being made by any party that answers to interrogatories would be sufficient and that the deposition would be burdensome and impressive. Mr. Kapsner seconded. This motion only applies to expert witnesses who are anticipated to be called as a witness. Motion CARRIED.

The Committee agreed that Rule 26 should not be amended. There is no uniform federal rule to track. Mr. Kapsner MOVED that because the Committee was so strong in its opposition to Rule 26, a letter should be written to Judge Comny and Judge Webb asking them to opt out to achieve uniformity of practice. Other Committee members did not think that it was appropriate for the Joint Procedure Committee to be advising the federal court.

The Motion was withdrawn.

The Committee did not think that there should be any automatic disclosures. Nothing is gained through Rule 26 disclosures versus Rule 33 interrogatories and Rule 34 requests. It is easier to ask what you want to receive by sending a request, rather than leaving it up to the other side to determine what is relevant. It would be difficult to define what information should be disclosed in each case. Nothing is gained. The typing has to be done either way. The parties need time to gather the information anyhow. The Committee rejected any amendment to Rule 26.

RULE 16, N.D.R.Civ.P. - PRETRIAL CONFERENCES, SCHEDULING, MANAGEMENT (PAGES 233-243 OF THE AGENDA MATERIAL)

The Committee reviewed the 1993 amendment to federal Rule 16. The Committee decided not to follow amended subdivision (b) of the federal rule, because the Committee had already decided not to amend Rule 3 or Rule 26. Scheduling orders are not mandatory in North Dakota.

The Committee reviewed amended subdivision (c) of federal Rule 16 on page 234. The Committee questioned whether the language proposed in subdivision (c) is redundant. The


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provisions are elsewhere. Other Committee members commented that the additional language draws attention to the opportunity the court has for structuring trial, and also resolves any doubt as to the court's authority to manage cases.

Mr. McLean MOVED to adopt all the proposed changes in federal Rule 16(c). North Dakota should stay reasonably consistent with the federal rule; the language is more specific and descriptive; and adopting the federal language will provide the practitioner with case law for interpretation. Judge Bohlman seconded. Committee members noted that paragraph 6 needs to be altered because North Dakota is not adopting the disclosure requirements of federal Rule 26. Paragraph 6 should be amended to provide as follows:

"(6) the control and scheduling of discovery, including orders affecting disclosures and discovery pursuant to Rule 26 and Rules 29 through-30;"

Mr. McLean incorporated the proposed deletion in his motion. Judge Bohlman seconded. Motion CARRIED.

Committee members questioned the overlap between Rule 16 pretrial conferences and Rule 26(f) discovery conferences. The Committee thought that originally a Rule 26(f) conference was the front-end conference and that a Rule 16 conference was the back-end conference. This distinction is no longer true. Amended Rule 26(f), Fed.R.Civ.P., no longer provides for discovery conferences, but instead refers to a meeting of the parties to plan for discovery. Committee members did not think that it was a big issue that conferences are labeled differently in two different rules, even though the court often merges the conferences.

Staff was instructed to prepare the explanatory note, incorporating the changes made by the Committee, for the Committee's consideration at the next meeting.

RULE 1, N.D.R.Civ.P - SCOPE OF RULES (PAGES 165-167 OF THE AGENDA MATERIAL)

The 1993 federal amendment simply added the words "and administered" to Rule 1, F.R.Civ.P. Mr. Odegard MOVED to adopt the 1993 federal amendment. Judge Bohlman seconded. Motion CARRIED.

Mr. Kapsner MOVED to adopt the explanatory note to Rule 1 as set forth on pages 166-167. Mr. Odegard seconded. Motion CARRIED.


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RULE 4, N.D.R.Civ.P. - PERSONS SUBJECT TO JURISDICTION - PROCESS -SERVICE (PAGES 168-214 OF THE AGENDA MATERIAL)

The Committee reviewed the 1993 federal amendment to Rule 4. Staff outlined the new provisions governing notice and request for waiver of service.

The Committee reviewed Mr. Rodenburg's proposed amendment to Rule 4 to allow for service by mail without a return receipt. The Committee also considered Minnesota's Rule 4 which allows for service by mail if an acknowledgment of service is returned.

Committee members stated that allowing service by mail without a return receipt will cause problems. There is no way of really knowing whether the person received the summons. Thus, costs cannot be imposed for effecting service if the acknowledgment of service form is not returned. A return receipt is needed. In addition, the cost savings between mail without a return receipt and mail with a return receipt is not sufficient enough to justify a change to the rule. Judge Smith MOVED not to amend North Dakota's Rule 4 to provide for service by mail without return receipt. Judge Leclerc seconded. Motion CARRIED.

On page 173, the Committee reviewed Rule 4(f), F.R.Civ.P., which provides for service upon individuals in a foreign county. Committee members thought that the amended provisions were significant. They cover what the Hague convention requires if service is to be effective in a foreign county. Mr. Lamb MOVED to consider the provisions in subdivision (f), for inclusion in North Dakota's rule at the next meeting. Mr. McLean seconded. Motion CARRIED.

Committee members questioned the applicability of subdivision (f)(c)(2) in North Dakota. The Committee questioned whether the clerk of the court should be required to dispatch mail. The Committee also questioned whether federal express should be allowed to be used. North Dakota's current rule simply provides for service by mail. Other Committee members commented that the language should not be altered to avoid conflict with the Hague convention or other applicable treaty.

Staff was instructed to prepare a draft amendment to North Dakota's Rule 4 that incorporates the federal provisions for service in foreign countries.

RULE 11, N.D.R.Civ.P. - SIGNING OF PLEADINGS, MOTIONS AND OTHER PAPERS; SANCTIONS (PAGES 215-227 OF THE AGENDA MATERIAL)

On page 221, staff explained the proposed amendment to subdivision (a). Committee members instructed staff to include the requirement for attorney registration numbers in the


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signature requirements of Rule 11 to achieve consistency with the proposed amendment to Rule 3.1.

Committee members stated that Rule 11 has not been applied equally to plaintiffs and defendants. It is used against plaintiffs more often than defendants.

Staff explained the proposed amendment to subdivision (b). The amendment to lines 41-44 revises the certification being made. The certification is expanded to the advocacy of documents previously filed. Previously the certification did not cover the advocation of a document already before the court.

Staff explained that the amendment on lines 44-46 changes the certification being made. The proponent of a document will initially have a lesser burden. Currently, the duty is to make "reasonable inquiry." The amendment provides that the duty is to make "reasonable inquiry under the circumstances."

Staff explained that the proposed amendment to lines 51-55 changes the certification that is being made in regard to one's legal contentions. Currently, one's legal contentions are required to be made in "good faith." Under the amendment, one's legal contentions are required to be "non-frivolous." The revision is intended to create an objective standard that eliminates "empty head - pure heart justifications." Committee members questioned how "non-frivolous" is any more objective than "good faith." Other Committee members commented that the problem with a "good faith requirement" is that it requires looking into one's heart.

Staff explained that the proposed amendment to lines 56-63 provides that allegations may be made if they are likely to have evidentiary support after reasonable opportunity for further investigation; or that, factual contentions may be denied if they are reasonably based on a lack of information or belief. The proposed amendment would create a lesser standard. Currently the rule requires that allegations or denials be "well-grounded in fact."

The Committee questioned the requirement for specific identification of allegations or denials that do not have immediate evidentiary support.

Committee members expressed concern that the proposed amendment to Rule 11 would create more specific pleading requirements. The plaintiff would be required to identify allegations that do not have current evidentiary support. Two categories of allegations would be created. Committee members suggested that it is easier to identify denials that are based on a lack of information or belief than it is to identify allegations that do not have current evidentiary support. Other


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Committee members commented that under the current rule allegations are to be well-grounded in fact.

Mr. McLean MOVED to adopt lines 40-64 with the removal of the phrases on lines 57-58 and lines 62-63 which provide: "if specifically so identified." Mr. Kapsner seconded. Motion CARRIED.

The Committee reviewed subdivision (c) which concerns sanctions. Committee members questioned the safe harbor provision on lines 73-90. Some Committee members argued that a party should have the opportunity to withdraw the allegation or denial after being faced with a motion for sanctions. Otherwise, the party may press on with an allegation or denial that they might otherwise drop if they were not faced with the possibility of sanctions. Other Committee members argued that the safe harbor provision would create more motions for sanctions. Parties will try to get their opponents to back down simply by serving a motion without ever intending to file the motion. Abuse will occur. Committee members also noted that the twenty-one day requirement sets up a different standard than provided in the other rules of procedure for noticing the motion and filing the motion.

Staff explained that the amendment to subdivision (d) provides that Rule 11 does not apply to Rules 26 through 37. The discovery rules will be a self-contained system. Committee members commented that it is rare for a sanction to develop outside of discovery, and that this amendment destroys Rule 11. Other Committee members suggested that Rule 11 is not that valuable in any event, and that only a small minority of states have adopted Rule 11.

Committee members suggested removing the safe harbor provision on lines 76-83. Other Committee members argued that twenty-one days gives the responding party time to find evidentiary support for the allegation or denial. Mr. McLean MOVED to adopt the proposed amendments to subdivision (c) and (d) in Rule 11 on pages 223 and 224. Judge O'Keefe seconded. Motion CARRIED by a vote of eight to five.

Mr. Lamb MOVED to adopt the explanatory note as set forth on pages 225-227. Mr. Odegard seconded. Other Committee members thought that the differences between North Dakota's proposed rule and the federal rule should be explained in the explanatory note. A vote was not called for on the motion.

The meeting adjourned at approximately 12:00 noon.

Gerhard Raedeke


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