Summer 2019 Summer 2019 Gavel | Page 29

AMENDMENTS TO CIVIL PROCEDURE, EVIDENCE RULES NOW IN EFFECT the procedure for presenting and deciding summary judgment motions. North Dakota did not follow the 2010 federal amendments. MIKE HAGBURG Attorney at Law Rule of Civil Procedure 56 on summary judgments was amended effective March 1 to include a deadline for serving a motion, a deadline for a reply brief, and length limits for principal, answer, and reply briefs. Under the amendments, the motion and supporting documents generally must be filed at least 90 days before the day set for trial and 45 days before the day set for the hearing. The party opposing summary judgment has 30 days to serve and file an answer brief. The moving party then has 14 days to serve and file a reply brief. Previously, there were no length limits for summary judgment briefs. Now, a principal brief or answer brief may not exceed 38 pages and a reply brief may not exceed 12 pages. On written application and good cause shown, the court may enlarge the page volume limits. The application may not exceed two pages and must be filed no later than seven days prior to the deadline for filing the brief. With these amendments, the text of Rule 56 diverges further from that of Federal Rule of Civil Procedure 56. The federal rule was extensively modified in 2010 to revise Amendments to two of the Rules of Evidence also took effect March 1. Under an amendment to Rule 803 on exceptions to the rule against hearsay, the ancient document exception now applies only to documents prepared before January 1, 1998. This change follows an amendment to Federal Rule 803 that took effect December 1, 2017. The federal rule amendment placing a time limit on use of the ancient document exception was made primarily to prevent the exception from becoming applicable to an expanding number of electronic documents. The federal committee, however, did not eliminate the exception entirely because it decided it was appropriate to preserve the exception for parties who needed to use very old documents. Having a well-defined cutoff date provides notice going forward that parties who wish to use electronically stored information (or paper documents) created after January 1, 1998, must preserve this material in a form that may be admitted without having to rely on a hearsay exception. Amendments to Rule 902 on self- authenticating evidence, which were based on the 2017 federal amendments, also became effective March 1. New paragraphs (13) and (14) of Rule 902 provide a means for self-authentication of certain electronic material. These new provisions allow designated electronic evidence to be authenticated by a certification of a qualified person in lieu of that person’s testimony at trial. New paragraph (13) allows self- authentication of machine-generated information (such as a web page) upon a submission of a certificate prepared by a qualified person. New paragraph (14) provides a similar certification procedure for data copied from an electronic device, media, or file. The federal committee stated that the new subdivisions are analogous to Rule 902(11) and (12), which permit a foundation witness to establish the authenticity and admissibility of business records by way of certification, with the burden of challenging authenticity on the opponent of the evidence. The committee stated that the purpose of the two new subdivisions is to make authentication easier for certain kinds of electronic evidence. Some minor changes to the Rules of Court took effect March 1. Rule 3.1 on pleadings was amended to consolidate the rule’s requirements related to the preparation and filing of paper documents in a single new subdivision. Rule 3.5 on electronic filing and Appendix K on electronic filing requirements were amended to add language excluding documents that consist of a single paragraph from the paragraph numbering requirement. SUMMER 2019 29