Discovery Interrogatories from Defendant to Plaintiff with Production Requests
Note: This summary is not intended to be an all inclusive
summary of discovery law in North Dakota, but does include basic and other
information.
Definitions
Discovery:
A procedure designed to allow disclosure of information between Plaintiffs and Defendants. Written questions, oral
questioning, document production and admissions requests are generally allowed.
Discovery was designed to to prevent trial by ambush.
Interrogatories:
Written questions from Plaintiff to Defendant, or from Defendant to Plaintiff. The questions are mailed to the
Plaintiff, Defendant or the attorney for response in writing. The answers
or responses are usually due between 20-30 days.
Deposition:
A procedure where verbal questions are asked a Plaintiff or Defendant for immediate response. Depositions are
usually recorded by a court reporter, who swears the person to tell the
truth before questioning begins.
Production of Documents:
The method of obtaining documents from the other party relevant to the case such as all documents a party
intends to introduce at trial.
Requests for Admissions:
Written questions where you request the other party to admit or deny some relevant fact.
Objections:
Objections may be made to all discovery questions if the questions are not relevant, or likely to lead to the discovery
of relevant evidence.
Civil Procedure Rules:
Virtually all states have adopted a version of civil procedure rules which includes rules dealing with discovery.
North Dakota Rules of Civil Procedure
North Dakota has adopted the North Dakota Rules of Civil Procedure
which contain rules governing discovery. The discovery rules also
apply in divorce actions.
Discovery Methods:
Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written
questions; written interrogatories; production of documents or things or
permission to enter upon land or other property, for inspection and other
purposes; physical and mental examinations; and requests for admission.
Rule 26(a)
Scope:
Unless otherwise limited by order of the court in
accordance with these rules, the scope of discovery is as follows:
In General.
Parties may obtain discovery regarding any matter,
not privileged, which is relevant to the subject matter involved in the
pending action, whether it relates to the claim or defense of the party
seeking discovery or to the claim or defense of any other party, including
the existence, description, nature, custody, condition, and location of
any books, documents, or other tangible things and the identity and location
of persons having knowledge of any discoverable matter. It is not ground
for objection that the information sought will be inadmissible at the trial
if the information sought appears reasonably calculated to lead to the
discovery of admissible evidence.
The frequency or extent of use of the discovery methods set forth
in subdivision (a) must be limited by the court if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or
is obtainable from some other source that is more convenient, less burdensome,
or less expensive; (ii) the party seeking discovery has had ample opportunity
by discovery in the action to obtain the information sought; or (iii) the
discovery is unduly burdensome or expensive, taking into account the needs
of the case, the amount in controversy, limitations on the parties' resources,
and the importance of the issues at stake in the litigation. The court
may act upon its own initiative after reasonable notice or pursuant to
a motion under subdivision (c). Rule 26(b)
Experts:
Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision
(b)(1) of this rule and acquired or developed in anticipation of litigation
or for trial, may be obtained only as follows:
(A) (i) A party may through
interrogatories require any other party to identify each person whom the
other party expects to call as an expert witness at trial, to state the
subject matter on which the expert is expected to testify, and to state
the substance of the facts and opinions to which the expert is expected
to testify and a summary of the grounds for each opinion.
(ii) A party may depose each person whom the other party expects
to call as an expert witness at trial unless, upon motion, the court finds
that the deposition is unnecessary, overly burdensome, or unfairly oppressive.
(B) A party may discover facts known or opinions held by an expert
who has been retained or specially employed by another party in anticipation
of litigation or preparation for trial and who is not expected to be called
as a witness at trial, only as provided in Rule 35(b) or upon a showing
of exceptional circumstances under which it is impracticable for the party
seeking discovery to obtain facts or opinions on the same subject by other
means.
(C) Unless manifest injustice would result, (i) the court shall
require that the party seeking discovery pay the expert a reasonable fee
for time spent in responding to discovery under subdivisions (b)(4)(A)(ii)
and (b)(4)(B) of this rule; and (ii) with respect to discovery obtained
under subdivision (b)(4)(A)(ii) of this rule the court may require, and
with respect to discovery obtained under subdivision (b)(4)(B) of this
rule the court shall require, the party seeking discovery to pay the other
party a fair portion of the fees and expenses reasonably incurred by the
latter party in obtaining facts and opinions from the expert. Rule 26(b)(4)
Sequence and Timing of Discovery:
Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders
otherwise, methods of discovery may be used in any sequence and the fact
that a party is conducting discovery, whether by deposition or otherwise, shall
not operate to delay any other party's discovery. Rule 26(d)
Supplementation of Responses:
A party who has responded to a request for discovery with a response that was complete when made is
under no duty to supplement the response to include information thereafter
acquired, except as follows:
(1) A party is under a duty seasonably to supplement the response
with respect to any question directly addressed to (A) the identity and
location of persons having knowledge of discoverable matters, and (B) the
identity of each person expected to be called as an expert witness at trial, the
subject matter on which the expert witness is expected to testify, and
the substance of the witness's testimony.
(2) A party is under a duty seasonably to amend a prior response
if the party obtains information upon the basis of which the party (A)
knows that the response was incorrect when made, or (B) knows that the
response, though correct when made, is no longer true and the circumstances
are such that a failure to amend the response is in substance a knowing
concealment.
(3) A duty to supplement responses may be imposed by order of the
court, agreement of the parties, or at any time prior to trial through
new requests for supplementation of prior responses. Rule 26(e)
Discovery Conference:
At any time after an action has been filed, the court may direct the attorneys for the parties to appear before
it for a conference on the subject of discovery. The court shall do so
upon motion by the attorney for any party if the motion includes:
(5) A statement showing that the attorney making the motion has
made a reasonable effort to reach agreement with opposing attorneys on
the matters set forth in the motion. Each party and each party's attorney
are under a duty to participate in good faith in the framing of a discovery
plan if a plan is proposed by the attorney for any party. Notice of the
motion must be served on all parties. Objections or additions to
matters set forth in the motion must be served not later than 10 days after
service of the motion.
Following the discovery conference, the court shall enter an order
tentatively identifying the issues for discovery purposes, establishing
a plan and schedule for discovery, setting limitations on discovery, if
any, and determining such other matters, including the allocation of expenses,
as are necessary for the proper management of discovery in the action.
An order may be altered or amended whenever justice so requires.
Subject to the right of a party who properly moves for a discovery
conference to a prompt convening of the conference, the court may combine
the discovery conference with a pretrial conference authorized by Rule
16. Rule 26(f)
Depositions
Before Whom Depositions May Be Taken:
Within the United States or within a territory or insular possession subject to the jurisdiction
of the United States, depositions must be taken before an officer authorized
to administer oaths by the laws of this state or of the United States or
of the place where the examination is held, or before a person appointed
by the court in which the action is pending. A person so appointed has
power to administer oaths and take testimony. Depositions may also be taken
before a person commissioned by the court or under a letter of request
under subdivisions (b) and (c). The term officer as used in Rules 30, 31,
and 32 includes a person appointed by the court or designated by the parties
under Rule 29. Rule 28(a)
Depositions may be taken in a foreign country (1) under a treaty
or convention, or (2) under a letter of request (whether or not captioned
a letter rogatory), or (3) on notice before a person authorized to administer
oaths in the place where the examination is held, either by the law thereof
or by the law of the United States, or (4) before a person commissioned
by the court, and a person so commissioned has the power by virtue of the
commission to administer any necessary oath and take testimony. Rule 28(b)
Stipulations:
Unless otherwise directed by the court, the parties may by written stipulation:
(1) provide that depositions may be taken before any person, at
any time or place, upon any notice, and in any manner and when so taken
may be used like other depositions, and
(2) modify other procedures governing or limitations placed upon
discovery unless they would interfere with any time set for hearing of
a motion or for trial. Rule 29
After commencement of the action, any party may take the testimony
of any person, including a party, by deposition upon oral examination.
Leave of court, granted with or without notice, must be obtained only if
the plaintiff seeks to take a deposition prior to the expiration of 30
days after service of the summons and complaint upon any defendant or service
made under Rule 4(e), but leave is not required
(1) if a defendant has served a notice of taking depositions or
otherwise sought discovery, or
The attendance of witnesses may be compelled by subpoena as provided
in Rule 45. The deposition of a person confined in prison may be taken
only by leave of court on such terms as the court prescribes. Rule 30(a)
(1) A party desiring to take the deposition of any person upon
oral examination shall give reasonable notice in writing to every other
party to the action. The notice must state the time and place for taking
the deposition and the name and address of each person to be examined,
if known, and, if the name is not known, a general description sufficient
to identify the person or the particular class or group to which the person
belongs. If a subpoena duces tecum is to be served on the person to be
examined, the description of the material to be produced as set forth in
the subpoena must be attached to or included in the notice.
(2) Leave of court is not required for the taking of a deposition
by plaintiff if the notice:
(A) states that the person to be examined is about to go out of
this State and will be unavailable for examination unless the deposition
is taken before expiration of the 30-day period, and
The plaintiff's attorney shall sign the notice. The attorney's signature
constitutes a certification that to the best of the attorney's knowledge,
information, and belief the statement and supporting facts are true. The
sanctions provided by Rule 11 apply to the certification.
If a party shows that when the party was served with notice under
this subdivision (b)(2) the party was unable through the exercise of diligence
to obtain counsel to represent the party at the taking of the deposition,
the depositions may not be used against the party.
(3) The court for cause shown may enlarge or shorten the time for
taking the deposition. The court may regulate at its discretion the time
and order of taking depositions as will best serve the convenience of the
parties and witnesses and the interests of justice.
(4) The court upon motion may order that the testimony at a deposition
be recorded by other than stenographic or audio-visual means, in which
event the order must designate the manner of recording, preserving, and
filing the deposition, and may include other provisions to assure that
the recorded testimony will be accurate and trustworthy. If the order is
made, a party may nevertheless arrange to have a stenographic transcription
made at the party's own expense. Any objections under subdivision (c),
any changes made by the witness, the witness' signature identifying the
depositions as the witness' own or the statement of the officer that is
required if the witness does not sign, as provided in subdivision (e),
and the certification of the officer required by subdivision (f) must be
set forth in writing to accompany a deposition recorded by non-stenographic
means.
(5) The notice to a party deponent may be accompanied by a request
made in compliance with Rule 34 for the production of documents and tangible
things at the taking of the deposition. The procedure of Rule 34 applies
to the request.
(6) In the party's notice and in a subpoena, a party may name as
the deponent a public or private corporation or a partnership or association
or governmental agency and describe with reasonable particularity the matters
on which examination is requested. In that event, the organization so named
must designate one or more officers, directors, or managing agents, or
other persons who consent to testify on its behalf, and may set forth,
for each person designated, the matters on which the person will testify.
A subpoena must advise a nonparty organization of its duty to make such
a designation. A person so designated shall testify as to matters known
or reasonably available to the organization. This subdivision does not
preclude taking a deposition by any other procedure authorized in these
rules.
(7) The parties may stipulate in writing or the court upon motion
may order that a deposition be taken by telephone. For the purposes of
this rule and Rules 28(a), 37(a)(1), 37(b)(1) and 45(d), a deposition taken
by telephone is taken in the district and at the place where the deponent
is to answer propounded questions. Rule 30(b)
Uniform Audio-Visual Deposition
(a) Authorization of Audio-Visual Deposition:
(1) Any deposition upon oral examination may be recorded by audio-visual means without a stenographic
record. Any party may make at his own expense a simultaneous stenographic
or audio record of the deposition. Upon his request and at his own expense,
any party is entitled to an audio or audio-visual copy of the audio-visual
recording.
(2) The audio-visual recording is an official record of the deposition.
A transcript prepared in accordance with Rule 30(c) is also an official
record of the deposition.
(3) On motion the court, for good cause, may order the party taking,
or who took, a deposition by audio-visual recording to furnish, at his
expense, a transcript of the deposition.
(b) Use.
An audio-visual deposition may be used for any purpose
and under any circumstances in which a stenographic deposition may be used.
(c) Notice.
The notice for taking an audio-visual deposition and
the subpoena for attendance at that deposition must state that the deposition
will be recorded by audio-visual means.
(d) Procedure.
The following procedure must be observed in recording
an audio-visual deposition:
(1) Opening of Deposition. The deposition must begin with an oral
or written statement on camera which includes:
(4) Multiple Units. If the length of a deposition requires the use
of more than one recording unit, the end of each unit and the beginning
of each succeeding unit must be announced on camera.
(5) Closing of Deposition. At the conclusion of a deposition, a
statement must be made on camera that the deposition is concluded. A statement
may be made on camera setting forth any stipulations made by counsel concerning
the custody of the audio-visual recording and exhibits or other pertinent
matters.
(6) Index. Depositions must be indexed by a time generator or other
method specified by the Supreme Court.
(8) Editing. If the court issues an editing order, the original
audio-visual recording may not be altered.
(9) Delivery. Unless otherwise stipulated by the parties, the operator
shall deliver, mail, or ship to the party noticing the audio-visual deposition
the original audio-visual recording of a deposition, any copy edited pursuant
to an order of the court, and any exhibits. If mailed or shipped, the deposition,
and any exhibits, must be sent via registered or certified mail or a traceable
third-party commercial delivery service.
(e) Costs. The reasonable expense of recording, editing, and using
an audio-visual deposition may be taxed as costs. Rule 30.1
Interrogatories
Any party may serve upon any other party written interrogatories
to be answered by the party served or, if the party served is a public
or private corporation or a partnership or association or governmental
agency, by any officer or agent, who shall furnish such information as
is available to the party. Interrogatories, without leave of court, may
be served upon the plaintiff after commencement of the action and upon
any other party with or after service of summons and complaint upon that
party. Rule 33(a)
(1) Each interrogatory must be answered separately and fully in
writing under oath, unless it is objected to, in which event the objecting
party shall state the reasons for objection and shall answer to the extent
the interrogatory is not objectionable.
(2) The answers are to be signed by the person making them, and
the objections signed by the attorney making them.
(3) The party upon whom the interrogatories have been served shall
serve a copy of the answers, and objections if any, within 30 days after
the service of the interrogatories, but a defendant may serve answers or
objections within 45 days after service of the summons and complaint upon
that defendant. A shorter or longer time may be directed by the court or,
in the absence of such an order, agreed to in writing by the parties subject
to Rule 29.
(4) A party shall restate the interrogatory being answered immediately
preceding the answer to that interrogatory.
(5) All grounds for an objection to an interrogatory must be stated
with specificity. Any ground not stated in a timely objection is waived
unless the party's failure to object is excused by the court for good cause
shown.
(6) The party submitting the interrogatories may move for an order
under Rule 37(a) with respect to any objection to or other failure to answer
an interrogatory.
(7) A party is not required to answer an interrogatory that is repetitive
of any interrogatory it has already answered. A party who has been served
with a response to an interrogatory submitted by another party is to be
regarded as having served the interrogatory. Rule 33(b)
Production
Any party may serve on any other party a request
(1) to produce and permit the party making the request, or someone acting on the requestor's
behalf, to inspect and copy any designated documents (including writings,
drawings, graphs, charts, photographs, phono-records, and other data compilations
from which information can be obtained, translated, if necessary, by the
respondent through detection devices into reasonably usable form), or to
inspect and copy, test, or sample any tangible things that constitute or
contain matters within the scope of Rule 26(b) and which are in the possession,
custody or control of the party upon whom the request is served; or
(2) to permit entry upon designated land or other property in the
possession or control of the party upon whom the request is served for
the purpose of inspection and measuring, surveying, photographing, testing,
or sampling the property or any designated object or operation thereon,
within the scope of Rule 26(b). Rule 34(a)
The request, without leave of court, may be served upon the plaintiff
after commencement of the action and upon any other party with or after
service of the summons and complaint upon that party. The request must
set forth, either by individual item or by category, the items to be inspected
and describe each with reasonable particularity. The request must specify
a reasonable time, place, and manner of making the inspection and performing
the related acts.
The party upon whom the request is served shall serve a written
response within 30 days after the service of the request, but a defendant
may serve a response within 45 days after service of the summons and complaint
upon that defendant. A shorter or longer time may be directed by the court
or, in the absence of such an order, agreed to in writing by the parties,
subject to Rule 29. The response must state, with respect to each item or category,
that inspection and related activities will be permitted as requested,
unless the request is objected to, in which event the reasons for objection
must be stated. If objection is made to part of an item or category, the
part must be specified and inspection permitted to the remaining parts.
The party submitting the request may move for an order under Rule 37(a)
with respect to any objection to or other failure to respond to the request
or any part thereof, or any failure to permit inspection as requested.
A party who produces documents for inspection shall produce them
as they are kept in the usual course of business or shall organize and
label them to correspond with the categories in the request. Rule 34(b)
Physical and Mental Examinations of Persons
If the mental or physical condition (including the blood group)
of a party, or a person in the custody or under the legal control of a
party, is in controversy, the court in which the action is pending may
order the party to submit to a physical or mental examination by a suitably
licensed or certified examiner or to produce for examination the person
in the party's custody or legal control. The order may be made only on
motion for good cause shown and upon notice to the person to be examined
and to all parties and must specify the time, place, manner, conditions,
and scope of the examination and the person or persons by whom it is to
be made. Rule 35(a)
(1) If requested by the party against whom an order is made under
Rule 35(a) or the person examined, the party causing the examination to
be made shall deliver to the requestor a copy of a detailed written report
of the examiner setting out the examiner's findings, including results
of all tests made, diagnoses and conclusions, together with like reports
of all earlier examinations of the same condition. After delivery the party
causing the examination is entitled upon request to receive from the party
against whom the order is made a like report of any examination, previously
or thereafter made, of the same condition, unless, in the case of a report
of examination of a person not a party, the party shows inability to obtain
it. The court on motion may make an order against a party requiring delivery
of a report on such terms as are just, and if an examiner fails or refuses
to make a report the court may exclude the examiner's testimony if offered
at the trial.
(2) By requesting and obtaining a report of the examination so ordered
or by taking the deposition of the examiner, the party examined waives
any privilege the party may have in that action or any other involving
the same controversy, regarding the testimony of every other person who
has examined or may thereafter examine him in respect of the same mental
or physical condition.
(3) This subdivision applies to examinations made by agreement of
the parties, unless the agreement expressly provides otherwise. This subdivision
does not preclude discovery of a report of an examiner or the taking of
a deposition of the examiner in accordance with the provisions of any other
rule. Rule 35(b)
Requests for Admissions
A party may serve upon any other party a written request for the
admission, for purposes of the pending action only, of the truth of any
matters within the scope of Rule 26(b)(1) set forth in the request that
relate to statements or opinions of fact or of the application of law to
fact, including the genuineness of any documents described in the request.
Copies of documents must be served with the request unless they have been
or are otherwise furnished or made available for inspection and copying.
The request, without leave of court, may be served upon the plaintiff after
commencement of the action and upon any other party with or after service
of the summons and complaint upon that party.
Each matter of which an admission is requested must be separately
set forth. The matter is admitted unless, within 30 days after service
of the request, or within such shorter or longer time as the court may
allow or as the parties may agree to in writing, subject to Rule 29, the
party to whom the request is directed serves upon the party requesting
the admission a written answer or objection addressed to the matter, signed
by the party or by the party's attorney. Unless the court shortens the
time, a defendant is not required to serve answers or objections before
the expiration of 45 days after service of the summons and complaint upon
that defendant. If objection is made, the reasons therefor must be stated.
The answer must specifically deny the matter or set forth in detail the
reasons why the answering party cannot truthfully admit or deny the matter.
A denial must fairly meet the substance of the requested admission, and
if good faith requires that a party qualify an answer or deny only a part
of the matter of which an admission is requested, the party shall specify
so much of it as is true and qualify or deny the remainder. An answering
party may not give lack of information or knowledge as a reason for failure
to admit or deny unless the party states that the party has made reasonable
inquiry and that the information known or readily obtainable by the party
is insufficient to enable the party to admit or deny. A party who considers
that a matter of which an admission has been requested presents a genuine
issue for trial may not, on that ground alone, object to the request; the
party, subject to the provisions of Rule 37(c), may deny the matter or
set forth reasons why the party cannot admit or deny it.
A party who has requested admissions may move to determine the sufficiency
of the answers or objections. Unless the court determines that an objection
is justified, it shall order that an answer be served. If the court determines
that an answer does not comply with the requirements of this rule, it may
order either that the matter is admitted or that an amended answer be served.
The court, in lieu of these orders, may determine that final disposition
of the request be made at a pre-trial conference or at a designated time
before trial. The provisions of Rule 37(a)(4) apply to the award of expenses
incurred in relation to the motion. Rule 36(a)
Compel Discovery
A party, upon reasonable notice to other parties and all persons
affected thereby, may apply for an order compelling discovery as follows:
(1) Appropriate Court. An application for an order may be made to
the court in which the action is pending or alternatively, on matters relating
to a deposition, to the court in the district where the deposition is being
taken.
(2) Motion. If a deponent fails to answer a question propounded
or submitted under Rules 30 and 31, or a corporation or other entity fails
to make a designation under Rule 30(b)(6) or 31(a), or a party fails to
answer an interrogatory submitted under Rule 33, or if a party, in response
to a request for inspection submitted under Rule 34, fails to respond that
inspection will be permitted as requested or fails to permit inspection
as requested, the discovering party may move for an order compelling an
answer, or a designation, or an order compelling inspection in accordance
with the request. While taking a deposition on oral examination, the proponent
of the question may complete or adjourn the examination before applying
for an order.
(3) Evasive or Incomplete Answer, or Response. For purposes of this
subdivision an evasive or incomplete answer, or response is to be treated
as a failure to answer, or respond. Rule 37
Domestic Actions Discovery Notes
If you require extra time to respond to discovery, you should ask
the other side for an extension in writing. It may also be necessary
to enter an order granting the extension to protect your rights.
Discovery questions are limited in number so select the most important
questions to ask the other side. Don't waste your requests writing
questions that you already know the answer to.
