Lex Mundi Global Attorney-Client Privilege Guide |
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USA, North Dakota |
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(United States)
Firm
Crowley Fleck PLLP
Contributors Updated 19 Mar 2020 |
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| Is the ACP recognized in your jurisdiction? | Yes. See, e.g., N.D. R. EVID. 502(b); Bolyea v. First Presbyterian Church of Wilton, 196 N.W.2d 149, 153 (N.D. 1972). |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | N/A |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | No reported decisions. The North Dakota Rules of Evidence apply to “proceedings in North Dakota courts” unless otherwise noted. N.D. R. EVID. 101 (a). The North Dakota Rules of Evidence elsewhere draw distinctions between evidentiary rules specifically applicable to civil and criminal proceedings. See, e.g., N.D .R. EVID. 301; N.D. R. EVID. 412(b); N.D.R.Evid. 801(d)(1)(A). Neither N.D. R. EVID. 502 nor any North Dakota Supreme Court case draws a similar distinction between civil and criminal proceedings as to the ACP. |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | No reported decisions. The North Dakota Rules of Evidence favorably cite Upjohn. See N.D. R. EVID. 502 Explanatory Note (noting N.D. R. EVID. 502(a)(4)’s definition of “representative of the client” repudiates the control group test by citing Upjohn). While not within the corporate context, the North Dakota Supreme Court has favorably cited Upjohn for other purposes. See Knoff v. Am. Crystal Sugar Co., 380 N.W.2d 313, 320 (N.D. 1986) supersession by statute on other grounds recognized in In Interest of F.M.G., 2017 ND 123, ¶ 7, 894 N.W.2d 850. North Dakota’s federal courts have relied on Upjohn in more analogous circumstances. See, e.g., North Dakota v. United States, 64 F. Supp. 3d 1314, 1330 (D.N.D. 2014) (citing Upjohn within the context of a governmental entity); DJ Coleman, Inc. v. Nufarm Americas, Inc., 2010 WL 731110 (D.N.D. Feb. 25, 2010) (citing Upjohn in considering claims of ACP for corporation). |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | No reported decisions. Rule 502(b), N.D. R. EVID., draws no distinction between a corporation’s in-house and outside counsel, but rather focuses upon whether communications were made for the purpose of facilitating the rendition of professional legal services. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | N/A |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | N/A |
| Is the common interest doctrine recognized in your jurisdiction? | No reported decisions. The explanatory notes to N.D. R. EVID. 502 state that the ACP “encompasses all communications necessarily made in the performance of legal service . . . .” Because communications made for the purposes of a joint defense would be for the performance of legal services and made with the expectation of confidentiality, N.D. R. EVID. 502 could apply to the common interest doctrine. What little precedent existing from the North Dakota Supreme Court supports that application. See Jose v. Norwest Bank North Dakota, N.A., 1999 ND 175, ¶ 25, 599 N.W.2d 293 (noting a qualified privilege existed concerning “a communication between persons of common interest” with respect to a defamation claim); O’Connor v. Immele, 43 N.W.2d 649 (N.D. 1950) (noting ACP did not apply to certain statements, not because statements were made between attorney and jointly represented spouses, but because the spouses subsequently communicated those statements to third-parties). |
| How is the doctrine articulated in your jurisdiction? | No reported decisions. See above. |
| Must a common interest agreement be in writing? | No reported decisions. See above. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | There appears to be no North Dakota law prohibiting litigation funding. The North Dakota Rules of Professional Conduct allow third-party financing of legal representation, but only to the extent that financing does not adversely affect the lawyer’s ability to provide legal representation to the client and the client consents in writing after consultation. See N.D. R. PROF. CONDUCT 1.7; N.D. R. PROF. CONDUCT 1.8(f). |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | No reported decisions. The ACP only applies to “clients.” North Dakota defines “client” to mean a person “for whom a lawyer renders professional legal services . . . .” N.D. R. EVID. 502(a)(1). Whether a litigation funder qualifies as a “client” is questionable. Additionally, N.D. R. EVID. 502 state that the ACP “encompasses all communications necessarily made in the performance of legal service. . . .” Whether communications with a litigation funder is necessary for the performance of legal services is questionable. The work product doctrine may protect communications with litigation funders if those communications concern the attorney’s mental impressions and theories of the case. See Nadeau v. Shipman, 2019 WL 188419 (D.N.D. Jan. 14, 2019) |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes. Rule 502(1), N.D. R. EVID., provides that the ACP does not apply “if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known was a crime or fraud.” |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | No reported decisions. See above. |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | Yes. Rule 26(b)(3)(A), N.D. R. CIV. P., provides that a party may not ordinarily “discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative . . . .” Rule 26, N.D. R. CIV. P., is derived from Rule 26 of the Federal Rule of Civil Procedure. N.D. R. CIV. P. 26 Explanatory Notes. That derivative nature makes federal interpretations of the latter persuasive in construing the former. See PHI Fin. Serv. v. Johnston Law Office, P.C., 2016 ND 114, ¶ 11, 881 N.W.2d 216. |
| What are the elements of the protection in your jurisdiction? | No reported decisions. But see Nadeau v. Shipman, 2019 WL 188419 (D.N.D. Jan. 14, 2019) (discussing work-product standards under FED. R. CIV. P. 23(b)(3)) Per N.D. R. CIV. P. 26(b)(3)(A), work-product is protected unless otherwise discoverable under N.D. R. CIV. P. 26(b)(1) or the requesting party shows “it has substantial need of the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” The North Dakota Supreme Court has seemingly adopted a “good cause” standard for evaluating whether a court should require disclosure of work-product. See Burlington N., Inc. v. N.D. District Court, Richland County, 264 N.W.2d 453, 458 (N.D. 1978). When that “good cause” exists and a court requires disclosure of work-product, the court “must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” N.D. R. CIV. P. 26(b)(3)(B). |
| Does your jurisdiction recognize an accountant-client privilege? | N.D. R. EVID. 501 provides that, unless otherwise allowed by constitution, statute, or rule, no party has the right to refuse to disclose any matter or produce any record. Nothing within the North Dakota Constitution or rules of evidence or procedure contains an accountant-client privilege. But, N.D.C.C. § 43-02.2-16 provides that a licensed accountant “may not voluntarily disclose information communicated to the licensee by the client relating to and in connection with services rendered to the client . . . .” This prohibition, however, does not prohibit disclosure in certain circumstances, including “disclosures in court proceedings.” Id. Also of note, the ACP may be broad enough to cover communication by and between a client, accountant, and an attorney when the accountant is necessary for the attorney to provide legal services. See N.D. R. EVID. 502 Explanatory Notes (noting the ACP “encompasses all communications necessarily made in the performance of legal service . . . .”); see also Bauer v. Orser, 258 F. Supp. 388 (D.N.D. 1966) (concluding the ACP protected communications with an accountant because the accountant was “essential” for the attorney to “give the proper legal advice and render proper legal services to his clients.”). |
| Does your jurisdiction recognize a mediation privilege? | No reported decisions. N.D. R. EVID. 408 renders any settlement negotiations inadmissible. But, lack of admissibility does not mean those statements are beyond the scope of discovery. See N.D. R. CIV. P. 26(b)(1)(A) (noting that relevancy, not admissibility, controls the scope of discoverable matters). |
| Does your jurisdiction recognize a settlement negotiation privilege? | No reported decisions. N.D. R. EVID. 408 renders any settlement negotiations inadmissible. But, lack of admissibility does not mean those statements are beyond the scope of discovery. See N.D. R. CIV. P. 26(b)(1)(A) (noting that relevancy, not admissibility, controls the scope of discoverable matters). |
Lex Mundi Global Attorney-Client Privilege Guide
Yes. See, e.g., N.D. R. EVID. 502(b); Bolyea v. First Presbyterian Church of Wilton, 196 N.W.2d 149, 153 (N.D. 1972).
N/A
No reported decisions. The North Dakota Rules of Evidence apply to “proceedings in North Dakota courts” unless otherwise noted. N.D. R. EVID. 101 (a). The North Dakota Rules of Evidence elsewhere draw distinctions between evidentiary rules specifically applicable to civil and criminal proceedings. See, e.g., N.D .R. EVID. 301; N.D. R. EVID. 412(b); N.D.R.Evid. 801(d)(1)(A). Neither N.D. R. EVID. 502 nor any North Dakota Supreme Court case draws a similar distinction between civil and criminal proceedings as to the ACP.
No reported decisions. The North Dakota Rules of Evidence favorably cite Upjohn. See N.D. R. EVID. 502 Explanatory Note (noting N.D. R. EVID. 502(a)(4)’s definition of “representative of the client” repudiates the control group test by citing Upjohn). While not within the corporate context, the North Dakota Supreme Court has favorably cited Upjohn for other purposes. See Knoff v. Am. Crystal Sugar Co., 380 N.W.2d 313, 320 (N.D. 1986) supersession by statute on other grounds recognized in In Interest of F.M.G., 2017 ND 123, ¶ 7, 894 N.W.2d 850. North Dakota’s federal courts have relied on Upjohn in more analogous circumstances. See, e.g., North Dakota v. United States, 64 F. Supp. 3d 1314, 1330 (D.N.D. 2014) (citing Upjohn within the context of a governmental entity); DJ Coleman, Inc. v. Nufarm Americas, Inc., 2010 WL 731110 (D.N.D. Feb. 25, 2010) (citing Upjohn in considering claims of ACP for corporation).
No reported decisions. Rule 502(b), N.D. R. EVID., draws no distinction between a corporation’s in-house and outside counsel, but rather focuses upon whether communications were made for the purpose of facilitating the rendition of professional legal services.
N/A
N/A
No reported decisions. The explanatory notes to N.D. R. EVID. 502 state that the ACP “encompasses all communications necessarily made in the performance of legal service . . . .” Because communications made for the purposes of a joint defense would be for the performance of legal services and made with the expectation of confidentiality, N.D. R. EVID. 502 could apply to the common interest doctrine. What little precedent existing from the North Dakota Supreme Court supports that application. See Jose v. Norwest Bank North Dakota, N.A., 1999 ND 175, ¶ 25, 599 N.W.2d 293 (noting a qualified privilege existed concerning “a communication between persons of common interest” with respect to a defamation claim); O’Connor v. Immele, 43 N.W.2d 649 (N.D. 1950) (noting ACP did not apply to certain statements, not because statements were made between attorney and jointly represented spouses, but because the spouses subsequently communicated those statements to third-parties).
No reported decisions. See above.
No reported decisions. See above.
There appears to be no North Dakota law prohibiting litigation funding. The North Dakota Rules of Professional Conduct allow third-party financing of legal representation, but only to the extent that financing does not adversely affect the lawyer’s ability to provide legal representation to the client and the client consents in writing after consultation. See N.D. R. PROF. CONDUCT 1.7; N.D. R. PROF. CONDUCT 1.8(f).
No reported decisions. The ACP only applies to “clients.” North Dakota defines “client” to mean a person “for whom a lawyer renders professional legal services . . . .” N.D. R. EVID. 502(a)(1). Whether a litigation funder qualifies as a “client” is questionable. Additionally, N.D. R. EVID. 502 state that the ACP “encompasses all communications necessarily made in the performance of legal service. . . .” Whether communications with a litigation funder is necessary for the performance of legal services is questionable. The work product doctrine may protect communications with litigation funders if those communications concern the attorney’s mental impressions and theories of the case. See Nadeau v. Shipman, 2019 WL 188419 (D.N.D. Jan. 14, 2019)
Yes. Rule 502(1), N.D. R. EVID., provides that the ACP does not apply “if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known was a crime or fraud.”
No reported decisions. See above.
Yes. Rule 26(b)(3)(A), N.D. R. CIV. P., provides that a party may not ordinarily “discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative . . . .” Rule 26, N.D. R. CIV. P., is derived from Rule 26 of the Federal Rule of Civil Procedure. N.D. R. CIV. P. 26 Explanatory Notes. That derivative nature makes federal interpretations of the latter persuasive in construing the former. See PHI Fin. Serv. v. Johnston Law Office, P.C., 2016 ND 114, ¶ 11, 881 N.W.2d 216.
No reported decisions. But see Nadeau v. Shipman, 2019 WL 188419 (D.N.D. Jan. 14, 2019) (discussing work-product standards under FED. R. CIV. P. 23(b)(3)) Per N.D. R. CIV. P. 26(b)(3)(A), work-product is protected unless otherwise discoverable under N.D. R. CIV. P. 26(b)(1) or the requesting party shows “it has substantial need of the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” The North Dakota Supreme Court has seemingly adopted a “good cause” standard for evaluating whether a court should require disclosure of work-product. See Burlington N., Inc. v. N.D. District Court, Richland County, 264 N.W.2d 453, 458 (N.D. 1978). When that “good cause” exists and a court requires disclosure of work-product, the court “must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” N.D. R. CIV. P. 26(b)(3)(B).
N.D. R. EVID. 501 provides that, unless otherwise allowed by constitution, statute, or rule, no party has the right to refuse to disclose any matter or produce any record. Nothing within the North Dakota Constitution or rules of evidence or procedure contains an accountant-client privilege. But, N.D.C.C. § 43-02.2-16 provides that a licensed accountant “may not voluntarily disclose information communicated to the licensee by the client relating to and in connection with services rendered to the client . . . .” This prohibition, however, does not prohibit disclosure in certain circumstances, including “disclosures in court proceedings.” Id. Also of note, the ACP may be broad enough to cover communication by and between a client, accountant, and an attorney when the accountant is necessary for the attorney to provide legal services. See N.D. R. EVID. 502 Explanatory Notes (noting the ACP “encompasses all communications necessarily made in the performance of legal service . . . .”); see also Bauer v. Orser, 258 F. Supp. 388 (D.N.D. 1966) (concluding the ACP protected communications with an accountant because the accountant was “essential” for the attorney to “give the proper legal advice and render proper legal services to his clients.”).
No reported decisions. N.D. R. EVID. 408 renders any settlement negotiations inadmissible. But, lack of admissibility does not mean those statements are beyond the scope of discovery. See N.D. R. CIV. P. 26(b)(1)(A) (noting that relevancy, not admissibility, controls the scope of discoverable matters).
No reported decisions. N.D. R. EVID. 408 renders any settlement negotiations inadmissible. But, lack of admissibility does not mean those statements are beyond the scope of discovery. See N.D. R. CIV. P. 26(b)(1)(A) (noting that relevancy, not admissibility, controls the scope of discoverable matters).