North Dakota Civil Discovery Rules and Procedures

Jurisdiction: North Dakota

North Dakota Civil Discovery Rules and Procedures

North Dakota civil discovery is governed primarily by the North Dakota Rules of Civil Procedure (N.D. R. Civ. P.), which closely mirror the Federal Rules of Civil Procedure but contain important state-specific variations. Understanding these rules is essential for effective case management and compliance.

Mandatory Initial Disclosures

North Dakota does require mandatory initial disclosures under N.D. R. Civ. P. 26(a)(1). These disclosures must be made without awaiting a discovery request, subject to exceptions.

Timing and Parties:

  • Initial disclosures must be made within 14 days after the parties have conferred as required by N.D. R. Civ. P. 26(f)

  • The parties must confer before the Rule 26(f) conference to discuss the nature and basis of claims and defenses, discovery needs, and a proposed discovery plan

    • Required Disclosures:

  • Name, address, and telephone number of each individual likely to have discoverable information—including a designation of topics

  • A copy of all documents, electronically stored information (ESI), and tangible things in the party's possession, custody, or control that are relevant to disputed facts

  • A computation of damages claimed by the disclosing party, including materials supporting the computation

  • For inspection, copying, testing, or sampling of any designated documents or tangible things

  • Insurance agreements under which an insurer may be liable to satisfy a judgment

    • Exceptions:
    Parties are not required to disclose information solely because it is relevant. Exemptions apply to information protected by attorney-client privilege, work product doctrine, and information protected by court order.

    Interrogatories

    Interrogatories remain a core discovery tool in North Dakota civil litigation.

    Numerical Limits:
    Under N.D. R. Civ. P. 33(a), each party may serve no more than 25 interrogatories, including all discrete subparts. Courts strictly enforce this limit. A subpart is considered a separate interrogatory if it seeks independent information or requires a separate answer. For example, "Who are all the witnesses and what did they observe?" would likely constitute two interrogatories.

    Format Requirements:

  • Interrogatories must be numbered consecutively

  • Each interrogatory must be set forth separately and distinctly

  • Definitions and instructions may be included but must be reasonable and not used to circumvent the 25-interrogatory limit

    • Time to Respond:

  • Responding party has 30 days from service to provide written answers under N.D. R. Civ. P. 33(b)(2)

  • This period may be extended by stipulation or court order

    • Answering and Objections:

  • Answers must be full, direct, and responsive to each interrogatory

  • If a party objects to an interrogatory, the objection must be stated with specificity

  • If only part of an interrogatory is objectionable, the party must answer the remainder

  • Boilerplate objections or evasive answers are disfavored and may result in sanctions

  • The responding party must provide whatever information it has regarding the subject matter

    • Common Pitfalls:
    Many North Dakota litigants attempt to exceed the 25-interrogatory limit by using umbrella interrogatories followed by numbered subparts. Courts will count reasonable subparts toward the limit, so strategic drafting is essential.

    Requests for Production of Documents

    N.D. R. Civ. P. 34 governs document production, which has become increasingly complex with ESI considerations.

    Scope:

  • Requests may seek production of documents, ESI, tangible things, and land for inspection

  • Requests must describe the items with reasonable particularity

  • Requests may be directed to parties or, with court approval, non-parties (via subpoena)

    • Format Requirements:

  • Requests must be numbered consecutively

  • Each request should be separately stated

  • Definitions and instructions are permitted but must be reasonable

    • Time to Respond:

  • 30 days from service to produce documents or respond with objections under N.D. R. Civ. P. 34(b)(2)

  • Extensions may be granted by stipulation or court order

    • ESI Considerations:
    North Dakota recognizes that ESI is discoverable and must be produced in usable form. Key principles include:

  • Format: ESI should generally be produced in the form in which it is ordinarily maintained or in a form that is reasonably usable

  • Metadata: While metadata is technically discoverable, parties often negotiate agreements regarding its production

  • Inaccessible Data: A responding party may be excused from producing ESI that is not reasonably accessible due to undue burden or cost, but must state this position and the reasons with specificity

  • Clawback Agreements: N.D. R. Civ. P. 502(b) allows parties to enter agreements limiting use and disclosure of privileged materials inadvertently produced

    • Common Issues:
    Failure to properly preserve ESI or producing massive document sets without reasonable organization often leads to disputes and sanctions.

    Requests for Admission

    Requests for admission under N.D. R. Civ. P. 36 are powerful tools for narrowing issues.

    Numerical Limits:
    Unlike interrogatories, N.D. R. Civ. P. 36 does not impose a numerical limit on requests for admission. However, courts may restrict requests that are unreasonable, unduly burdensome, or sought for harassment purposes.

    Drafting:

  • Each request must be separately stated and must request admission of a single fact or related group of facts

  • Requests should be phrased to require a clear admission or denial

    • Time to Respond:

  • 30 days from service to respond under N.D. R. Civ. P. 36(a)(3)

  • The responding party must admit, deny, or explain inability to admit with sufficient detail

    • Deemed Admissions:
    This is a critical consequence often overlooked:

  • If a party fails to timely respond to a request for admission, the matter is deemed admitted under N.D. R. Civ. P. 36(a)(3)

  • A deemed admitted fact is conclusively established for purposes of the case unless the court permits withdrawal or amendment

  • The court has discretion to permit withdrawal of admissions upon a showing of good cause, but this is not automatic

  • Once a matter is admitted (whether expressly or by default), the opposing party need not prove that fact at trial

    • Strategic Importance:
    Because deemed admissions can be case-dispositive, responding to requests for admission requires extreme care. Many North Dakota judges have imposed sanctions on parties who neglect this deadline.

    Depositions

    Depositions remain the most comprehensive discovery method and are governed by N.D. R. Civ. P. 30.

    Number of Depositions:

  • Each party may depose any other party without court order

  • Non-parties may be deposed if served with a subpoena

    • Duration Limits:

  • Each deposition is limited to one day of seven hours unless otherwise stipulated or ordered by the court under N.D. R. Civ. P. 30(d)(1)

  • The seven-hour limit is per witness, not aggregate

    • Notice Requirements:

  • Written notice must be served on all parties at least 14 days before the deposition under N.D. R. Civ. P. 30(b)(1)

  • The notice must state the time and place of the deposition and the name and address of the deponent (if known)

  • For non-parties, a subpoena (not just notice) is required

    • Who Can Be Deposed:

  • Any party to the litigation

  • Non-parties with knowledge of relevant facts (via subpoena)

  • Corporate representatives designated under N.D. R. Civ. P. 30(b)(6)

    • Corporate/Organization Depositions:

  • A party may require a corporation, partnership, or other organization to designate officers, directors, or agents to testify about matters within the organization's knowledge

  • The designating party must prepare its representative to testify about the topics specified in the notice

    • Procedure:

  • Depositions are typically taken by oral examination before a court reporter

  • The deponent is sworn to testify truthfully

  • Both counsel may examine and cross-examine the deponent

  • Objections may be stated (except as to form), but the deponent must still answer unless privileged or subject to court order

  • The deposition transcript is prepared by the court reporter and may be used at trial

    • Use at Trial:

  • Deposition testimony may be used for any purpose under N.D. R. Civ. P. 32

  • An adverse party's deposition may be used to impeach or contradict testimony

  • Depositions of unavailable witnesses may be read into evidence at trial under certain circumstances

    • Physical and Mental Examinations

    N.D. R. Civ. P. 35 permits court-ordered examinations when a party's physical or mental condition is at issue.

    When Allowed:

  • A physical or mental examination of a party (or a party in the custody of a party) may be ordered by the court

  • The party's condition must be in controversy and good cause must be shown

    • Who Can Request:

  • The opposing party must move the court for an order

  • Unilateral examinations without court order are not permitted

    • Requirements:

  • The motion must show good cause for the examination

  • The scope and manner of the examination must be reasonable

  • The party must be provided at least 14 days' notice of the time and place of the examination

  • A detailed report of the examining physician must be provided to the requesting party

    • Reciprocal Right:

  • If the examined party requests the examination report, the examining party must provide it

  • The examined party may then require the requesting party to provide a detailed report of its own examining physician

    • Subpoenas for Non-Parties

    N.D. R. Civ. P. 45 governs subpoenas for non-party discovery.

    Issuance:

  • A subpoena may be issued by an attorney admitted to practice in North Dakota under N.D. R. Civ. P. 45(a)

  • The subpoena must be issued in the county where the witness resides or is employed or where the inspection or production is to occur

    • Geographic Limits:

  • A subpoena may require a non-party to attend a deposition, hearing, or trial within 100 miles of where the non-party resides, is employed, or regularly transacts business

  • For production of documents or inspection, a non-party may be required to produce materials at a location within these same geographic limits

    • Service and Compliance:

  • The subpoena must be personally served on the non-party

  • The subpoena must state the reasonable time for compliance

  • A fee and mileage reimbursement must be tendered with or before service

  • Non-parties may object or seek a protective order

    • Duces Tecum Subpoenas:

  • A subpoena may command production of documents, ESI, or tangible things under N.D. R. Civ. P. 45(d)

  • The scope is the same as that of document requests under Rule 34

    • Expert Discovery

    Expert disclosure and discovery are critical in many North Dakota civil cases.

    Disclosure Requirements:

  • Expert witnesses must be disclosed under N.D. R. Civ. P. 26(a)(2)

  • The disclosure must include a detailed written report unless the court directs otherwise

  • In cases not involving retained experts, disclosure is governed by N.D. R. Civ. P. 26(a)(2)(C)

    • Report Contents:
    The expert's written report must contain:

  • A complete statement of the expert's opinions and the basis and reasons therefor

  • The facts or data considered by the expert

  • Any exhibits that will be used to summarize or support the opinions

  • The expert's qualifications, including a listing of all publications authored

  • A statement of the compensation to be paid for the expert's testimony and work in the case

  • A listing of any other cases in which the expert has testified as a retained expert during the previous four years

    • Timing:

  • Expert disclosures must be made at least 90 days before trial (unless otherwise stipulated or ordered)

  • Rebuttal expert disclosures must be made at least 30 days before trial

  • These deadlines are subject to court modification

    • Deposing Experts:

  • Any expert may be deposed under N.D. R. Civ. P. 26(b)(4)(A)

  • The deposition of a retained expert is governed by the same rules as fact witness depositions

  • Discovery against an expert is otherwise limited to the written report and the work underlying it

    • Scope of Discovery

    Generally Discoverable:
    N.D. R. Civ. P. 26(b)(1) permits discovery of any nonprivileged matter that is relevant to any party's claim or defense. The scope is broad.

    Relevance Standard:

  • Information is relevant if it has any tendency to make a fact of consequence more or less probable

  • Relevance is determined broadly in discovery (broader than the admissibility standard at trial)

    • Proportionality:
    N.D. R. Civ. P. 26(b)(1) requires that discovery be proportional to the needs of the case, considering:

  • The importance of the issues at stake in the action

  • The amount in controversy

  • The parties' relative access to relevant information

  • The parties' resources

  • The importance of the discovery in resolving the issues

  • Whether the burden or expense of the discovery outweighs its likely benefit

    • Courts may limit discovery that is disproportionate under these factors.

    Limitations:
    Discovery does not extend to:

  • Information protected by attorney-client privilege

  • Work product doctrine materials

  • Information subject to a protective order

  • Information regarding trial preparation in the possession of an expert not expected to testify

    • Privileges and Work Product

    Attorney-Client Privilege:

  • Communications between client and attorney made in confidence for the purpose of obtaining legal advice are privileged

  • North Dakota recognizes the privilege under common law and state statute

  • The privilege belongs to the client and may be waived by the client

    • Work Product Doctrine:

  • Documents and tangible things prepared in anticipation of litigation by an attorney or representative are protected under N.D. R. Civ. P. 26(b)(3)

  • This includes mental impressions, conclusions, opinions, or legal theories of counsel

  • Work product is discoverable only upon a showing of substantial need and inability to obtain equivalent material without undue hardship

  • Opinion work product receives heightened protection and is rarely discoverable

    • Privilege Log:

  • If a party claims privilege or work product protection, it must make a log disclosing the nature of the withheld materials and the basis for withholding

  • The log should be detailed enough to allow the requesting party to evaluate the claim of privilege

  • The log must identify each withheld document by date, parties, author, subject matter, and number of pages

    • Clawback Agreements:

  • Under N.D. R. Civ. P. 502(b), parties may enter an order or agreement that inadvertently produced privileged materials will not constitute a waiver

  • This protects parties from forfeiting privilege through inadvertent disclosure

    • Meet and Confer Requirements

    Before Filing Motions:
    N.D. R. Civ. P. 26(f) and the general discovery rules contemplate that parties will confer in good faith regarding discovery disputes.

  • Initial Conference: Parties must confer at the Rule 26(f) conference early in the case to discuss discovery needs and develop a proposed discovery plan

  • Dispute Resolution: Before filing a motion to compel or for a protective order, the moving party must certify that it has made a good faith effort to obtain the information or resolve the dispute without court intervention

  • Informal Resolution: Many North Dakota judges require detailed meet-and-confer letters demonstrating efforts to resolve disputes

  • Certification: The motion must include a declaration that the movant has conferred with the responding party in a good faith effort to resolve the matter

    • Failure to meet and confer in good faith can result in denial of the motion or sanctions, even if the motion has merit.

    Discovery Cutoffs and Trial Deadlines

    Timing Relative to Trial:

  • Discovery generally must be completed before trial unless extended by stipulation or court order

  • Expert disclosures must be made at least 90 days before trial

  • Rebuttal expert disclosures must be made at least 30 days before trial

  • Specific discovery cutoff dates are typically set by the court in a case management order

    • Exceptions:

  • Supplemental disclosures and responses must be made promptly as new information becomes available

  • Depositions may continue closer to trial if necessary, but generally should be completed well before trial to allow trial preparation

    • Protective Orders

    Grounds for Issuance:
    Under N.D. R. Civ. P. 26(c), a party or prospective discoverer may seek a protective order on a showing of good cause. Good cause includes:

  • Protection of trade secrets or confidential commercial information

  • Protection of sensitive personal information

  • Prevention of undue burden or expense

  • Protection of attorney-client privilege or work product

  • Prevention of harassment

    • Procedure:

  • The party seeking protection must file a motion and certify that it has attempted in good cause to meet and confer with the requesting party

  • The court will enter an order limiting discovery, requiring disclosure of information only to designated counsel, or imposing other reasonable restrictions

  • Protective orders commonly designate information as "Confidential" or

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