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
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