North Dakota Motion to Compel

Introduction

Key Things to Know

1. 1

   A North Dakota motion to compel is the paper that asks the district court to order discovery answered, and it is N.D.R.Civ.P. 37(a)(3)(A), To Compel a Discovery Response, which lets a party seeking discovery move for an order compelling an answer, designation, production or inspection. Count the subparagraph rather than copying it from the federal rule: North Dakota deleted the federal disclosure branch, so there is no motion to compel disclosures here and 37(a)(3)(B) is the provision about completing or adjourning an oral deposition before moving. Two more numbers run against expectation. The fee provision is 37(a)(5). And 37(e) is not electronically stored information, which sits at 37(f).

2. 2

   N.D.R.Ct. 3.2 is what actually governs how the motion is heard. The default is the briefs. An answer brief is due fourteen days after service of the moving party's brief, a reply brief seven days after the time for the answer brief expires, and a request for oral argument seven days after that same point. The part that catches people is what happens next: a party requesting oral argument must secure a time for the argument within fourteen days of the request, and otherwise the request is waived and the matter is considered on the briefs. Twenty one days notice is required if an evidentiary hearing is requested in a civil action. Rule 3.2 has been amended again with effect from March 1, 2025, so check the current text of subdivision (a) before you rely on any of those counts.

3. 3

   Rule 37(e) is the sentence that changes the answer for anyone suing a state agency. It is captioned Expenses Against the State and it reads: except to the extent permitted by statute, expenses and fees may not be awarded against the State of North Dakota under this rule. That is categorical rather than discretionary, and it is not one of the three escape hatches in 37(a)(5)(A). It takes the mandatory expense award off the table altogether where the opponent is the State, which means the usual reason to file promptly and ask for costs does not apply in that case. Note where it sits, because in the restyled federal rule the same letter is the electronically stored information provision.

4. 4

   The expense award is mandatory both ways and North Dakota drafts its exceptions as an instruction to the court rather than as an unless clause. Under 37(a)(5)(A) the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both, to pay the movant's reasonable expenses including attorney's fees. But the court must not order this payment if the movant filed before attempting in good faith to obtain discovery without court action, if the opposing party's nondisclosure, response or objection was substantially justified, or if other circumstances make an award unjust. Under 37(a)(5)(B) a denied motion is equally mandatory against the movant, the attorney filing the motion, or both, and the court may add a protective order. Note the caption on the granted limb: it fires if the requested discovery is provided after the motion was filed, so late capitulation does not avoid it.

5. 5

   North Dakota caps interrogatories at fifty, and the subpart rule runs the opposite way from the one most people expect. Rule 33(a)(3) provides that interrogatory subparts are not counted as separate interrogatories if they are logically or factually subsumed within and necessarily related to the primary question, so a properly drafted compound question does not burn the allowance. Leave to serve more may be granted to the extent consistent with Rule 26(b)(1)(B), which ties the application to the proportionality standard rather than leaving it open. Rule 33(b)(6) adds a multi-party rule worth knowing before you draft a motion: a party is not required to answer an interrogatory that is repetitive of any it has already answered, and an interrogatory served by one party is considered to be served by all parties.

6. 6

   Check how the time to respond was extended before you argue about waived objections. Rule 33(b)(2) gives thirty days after service of the interrogatories, with a defendant not required to answer until forty-five days after service of the summons and complaint on it, and then says a shorter or longer time may be stipulated to under Rule 29 or ordered by the court. The next sentence is the one to read: any stipulated extension of time applies to interrogatory answers and objections. So a party that took a stipulated extension has not lost its objections along the way. Rule 33(b)(4) is where the loss happens instead, because the grounds for objecting must be stated with specificity and any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.

7. 7

   No North Dakota rule sets a time limit for bringing the motion and none says that delay waives the right to compel. What fixes your real date is the scheduling order, and Rule 16 gives you a way to force one. Under 16(b)(1) the court must conduct a pretrial conference to enter a scheduling order on any of four triggering events, and the fourth is simply that any party makes a written request for one. Under 16(b)(2) that conference must be held within sixty days of the triggering event. Rule 16(d) then provides that the order issued after the conference controls the course of the action unless the court modifies it, and under 16(f)(2) the judge must order the party, its attorney, or both to pay the reasonable expenses caused by any noncompliance with the rule, unless the noncompliance was substantially justified or other circumstances make an award unjust.

North Dakota Requirements for Motion to Compel

• The Authority, Counted Rather Than Copied: N.D.R.Civ.P. 37(a)(3)(A)

  North Dakota's motion is 37(a)(3)(A), To Compel a Discovery Response, under which a party seeking discovery may move for an order compelling an answer, designation, production, or inspection. The letter is (A) and not (B) because North Dakota deleted the federal disclosure subparagraph, so there is no compel-disclosure branch and (a)(3)(B) is the deposition-adjournment provision instead. Where a response arrived but says nothing, 37(a)(4) is the ground to plead: for purposes of subdivision (a), an evasive or incomplete answer or response must be treated as a failure to answer or respond.

• Whether the Opponent Is the State of North Dakota

  Settle this before you draft the expense request, because Rule 37(e), captioned Expenses Against the State, provides that except to the extent permitted by statute, expenses and fees may not be awarded against the State of North Dakota under this rule. It is categorical rather than one of the fact-based escapes in 37(a)(5)(A), and it reaches the whole of Rule 37. The order compelling the discovery is still available; it is the money that is not. Note the placement too: in the restyled federal rule this letter is the electronically stored information provision, which in North Dakota is 37(f).

• The Certification Required Inside the Motion

  Rule 37(a)(1) requires the motion to be made on notice to other parties and all affected persons, and to include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make discovery in an effort to obtain it without court action. No rule bars the filing without it. The consequence is in the money instead: under 37(a)(5)(A)(i) the court must not order payment of expenses if the movant filed the motion before attempting in good faith to obtain discovery without court action. The total-failure route under Rule 37(d) carries its own certification at 37(d)(1)(B), in the same terms.

• Whether You Want a Hearing, and the Date You Secure for It

  Under N.D.R.Ct. 3.2 the motion is decided on the briefs unless oral argument is requested, and the notice must say which. The Supreme Court's note printed with the rule records the sequence: an answer brief fourteen days after service of the moving party's brief, a reply brief seven days after the time for the answer brief expires, and a request for oral argument seven days after that same point. A party requesting oral argument must then secure a time for the argument within fourteen days of the request, or the request is waived and the matter is considered on the briefs. Twenty one days notice is required where an evidentiary hearing is requested in a civil action. Rule 3.2 was amended effective March 1, 2025, so check the current text of subdivision (a) before calendaring.

• The Court You File In, Which Differs for a Nonparty

  Rule 37(a)(2) splits the forum. A motion for an order to a party must be made in the court where the action is pending. A motion for an order to a nonparty may be made in the court where the discovery is or will be taken or in the court where the action is pending, so against a nonparty the movant chooses. Record which you are using and why, and remember that the notice requirement in 37(a)(1) extends to all affected persons, which is what reaches the nonparty.

• Proof the Thirty Day or Forty Five Day Period Had Run, and How Any Extension Was Given

  Rule 33(b)(2) requires answers and any objections within thirty days after service of the interrogatories, but a defendant is not required to serve its answer and any objections until forty-five days after service of the summons and complaint on it. A shorter or longer time may be stipulated to under Rule 29 or ordered by the court, and the rule adds that any stipulated extension of time applies to interrogatory answers and objections. Rule 36(a)(3) sets the same thirty days and forty-five day defendant floor for requests for admission, with the matter admitted if nothing is served. Record the dates and the terms of any stipulation, because that sentence is what answers an argument that objections were waived by delay.

• The Interrogatory Count, With North Dakota's Subpart and Repetition Rules

  Rule 33(a)(3) allows no more than fifty written interrogatories unless otherwise stipulated or ordered, and then provides that interrogatory subparts are not counted as separate interrogatories if they are logically or factually subsumed within and necessarily related to the primary question. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(1)(B). Rule 33(b)(6) adds that a party is not required to answer an interrogatory that is repetitive of any it has already answered, and that an interrogatory served by one party is considered to be served by all parties, which matters in a multi-party case. Rule 33(b)(4) is where grounds are lost: they must be stated with specificity, and any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.

• The Scheduling Order, and the Written Request That Forces One

  No North Dakota rule sets a time to bring the motion, so the date that binds you is the scheduling order. Rule 16(b)(1) requires the court to conduct a pretrial conference for the purpose of entering a scheduling order on any of four triggering events, the fourth being that any party makes a written request for a pretrial conference to enter a scheduling order. Rule 16(b)(2) requires that conference to be held within sixty days of the triggering event, and 16(d) provides that the order issued after it controls the course of the action unless the court modifies it. Rule 16(f)(2) backs the whole rule: instead of or in addition to any other sanction, the judge must order the party, its attorney, or both to pay the reasonable expenses, including attorney fees, incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.