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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