DEVELOPMENT OF NORTH DAKOTA’ S GENERAL DISCOVERY RULE REFLECTS LOCAL AND FEDERAL INFLUENCES
DEVELOPMENT OF NORTH DAKOTA’ S GENERAL DISCOVERY RULE REFLECTS LOCAL AND FEDERAL INFLUENCES
MIKE HAGBURG Attorney at Law
The Joint Procedure Committee’ s mission is to study and review all procedural rules. As part of its work, the committee closely monitors changes in the federal rules of procedure. Many of North Dakota’ s rules are based on federal models and the state Supreme Court may look to federal court rule interpretations for guidance when a state rule is similar to a federal rule. Therefore, the committee reviews and discusses federal rule amendments, and amendments to state procedural rules will often follow when a federal rule has been changed.
Attorneys should be aware some of our state procedural rules have diverged from their federal models over the years, and federal interpretations no longer provide guidance in these cases. Civil Procedure Rule 26, the general rule on discovery, may be the most prominent example. In 1971, Rule 26 and related discovery rules were amended to conform more closely to their federal counterparts, which had themselves been amended in 1970. In 1993, however, the state and federal versions of Rule 26 went in different directions after requirements for initial and automatic disclosure of designated discovery information became part of the federal rule.
Initial disclosures were controversial even at the federal level. Congress, which has final approval authority over the federal rules, made efforts to block the initial disclosure requirement, but the House and Senate could not reach agreement on this issue. When the committee started considering the federal changes to Rule 26 in September 1994, the possibility that initial disclosures would be eliminated still existed. After discussing the federal changes and the generally negative commentary that greeted them, the committee decided initial disclosures were not a good idea for North Dakota. It concluded the same information could be gathered from Civil Procedure Rule 33 interrogatories and Rule 34 requests.
Initial disclosures, however, were not eliminated from the federal rule. In 2000, a provision allowing districts to opt out of initial disclosures was removed, making initial disclosure practice uniform nationwide in the federal courts. The Joint Procedure Committee has considered making initial disclosures part of state Rule 26 at various times since 1993, most recently at meetings in 2016 and 2017, but a majority of the committee has consistently rejected recommending this change.
Even though North Dakota did not follow the federal rule on initial disclosures, several amendments patterned on other federal rule changes have become part of Rule 26. In 1996, the rule was amended to allow experts expected to testify at trial to be deposed without court authorization. In 2008, amendments related to the discovery of electronically stored information became part of the rule. In 2011, form and style amendments based on changes to the federal rules were made to Rule 26.
North Dakota has also looked to other states for guidance in improving Rule 26, especially other states that also rejected requiring initial disclosures. In 2013, Rule 26 was amended to include a specific definition of " electronically stored information " and to designate what types of metadata may be discovered. In addition, a new procedure for discovery meetings and conferences, and for the formulation of discovery plans and reports – with an emphasis on discussing and planning for the discovery of electronic information – was added to the rule. These amendments were based on innovations developed in North Carolina for its discovery rules.
The Joint Procedure Committee continues to discuss implementation of changes made to the federal discovery rules. In 2011, the committee addressed changes to the federal rule related to expanded disclosure of information about expert testimony, but the committee did not recommend adoption of these amendments. More recently, the committee discussed the 2015 amendments to the federal rule that require detailed proportionality considerations to be made when addressing the scope of discovery. The committee decided not to recommend adoption of these changes in North Dakota, in part because of concerns that adopting a proportionality standard might prevent parties from having the opportunity to discover all relevant evidence.
Many of the changes the committee has considered over the years for Rule 26 and other procedural rules have been recommended by the bench and bar. The committee continues to welcome all suggestions for improvement of the rules of procedure.
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