Navajo Rules of Civil Procedure Cite as Nav. R. Civ. P.

The Navajo Nation Supreme Court adopted these rules on May 22, 1989.  The rules were further approved by the Judiciary Committee of the Navajo Nation Council on May 23, 1989.  These rules became effective on July 1, 1989.

Important Note: Procedures for Forcible Entry and Detainer Actions are separately contained in the Navajo Nation Code at 16 N.N.C. § 1801 et seq.  These are largely unannotated rules with very brief commentary.  For the annotated rules, see NAVAJO NATION PRACTICE BOOK, Fourth Edition, T&B Publishing.

PART I. SCOPE OF RULES AND DEFINITIONS

 

RULE 1. Scope of Rules.
  These Rules govern the procedure in all civil actions. They shall be construed to serve the just, speedy, and inexpensive determination of every action. These Rules shall be cited as Nav. R. Civ. P.
1.1 Definition and Terms.
1.I(a) Counsel. The term "counsel" as used in these Rules shall include all members of the Navajo Nation Bar Association and any other authorized representative of a party.
1.1(b) Entry of Judgment. The term "entry of judgment" as used in these Rules occurs on the date the judge signs the final decision.
1.1(c) Navajo Nation. The term "Navajo Nation" as used in these Rules means all lands making up Navajo Indian Country as defined at 7 N.N.C. § 254.
1.1(d) Order. The term "order" as used in these Rules shall mean every document signed by the judge including proposed orders prepared by the parties, their representatives, or the court.
1.1(e) Pleading. The term "pleading" as used in these Rules shall include all papers filed or required to be filed with the court by a party.
NNSC Commentary:
A. Purpose of Rules. The purpose of these Rules is to provide both the judges and the practitioners with a uniform guide for the just and efficient processing of a case through court.
B. Scope of Rules. These Rules are based upon the general concepts of the former Navajo Rules of Civil Procedure.
C. Forcible Entry and Detainer. The procedures for Forcible Entry and Detainer are contained
at 16 N.N.C. § 1801 et seq.

RULE 2. One Form of Action.                                    

  There shall be one form of action to be known as "civil action."

PART II. STARTING AN ACTION AND SERVICE

RULE 3. Commencement of Action.
  A civil action is begun by filing a complaint with the court. A complaint shall be labeled a complaint, a petition, or an application.

RULE 4. Process.

NNSC Commentary: Service of summons and complaint is often called service of process. Process generally refers to the means by which a defendant is informed of an action and compelled to appear and defend.
4(a) Filing the Complaint. At the time the complaint is filed, the clerk shall place thereon the date and hour on which it was filed and the number of the action. The clerk shall immediately issue a summons and deliver the summons and a copy of the complaint for service to the Navajo Police or to any other person authorized by Rule 4( c) to serve it. Upon request of the plaintiff separate or additional summons shall issue against any defendant.
4(b) Summons; Form; Service; Substitute Summons.
  (1) A summons shall:
    (A) Be signed by the clerk of the court.
    (B) Contain the name and district of the court.
    (C) Contain the names of the parties.
    (D) Be directed to the defendant.
    (E) Show the docket number.
    (F) State the time within, which these Rules require the defendant to answer the complaint.
    (G) Notify defendant that in case of his failure to answer the complaint a judgment by default may be entered against him.
  (2) A copy of the complaint and summons shall be prepared for each defendant.
  (3) The summons and complaint shall be served together. The plaintiff shall furnish the person making service with necessary copies. Service attempts shall be made in the following order:
    (A) Service within the Navajo Nation:
      i. Personal Service
      ii. Certified Mail
      iii. Publication
    (B) Service out of the Navajo Nation:
      i. Personal Service
      ii. Certified Mail
      iii. Publication
    If a summons. is returned without being served, or if it has been lost, the clerk shall issue a substitute summons.
4(c) Who May Make Personal Service of Process within the Navajo Nation.  Personal Service of process shall be by one of the following:
  (1) Navajo Police Officer.
  (2) Special appointee. A special appointee is a person eighteen years of age or older who is not a party or legal counsel in the action. A special appointee is appointed by the presiding judge of the court in which the action is filed and the appointment is only for service of process in the action. Special appointments to serve process shall be freely made.
  (3) Private process server who is registered with the court.
    (A) A private process server, if a person eighteen years of age or older, may be registered with the court by filing an application containing the following:
      i. Name, age, residence, business address and telephone number.
      ii. A statement that he has been a bona fide resident of the Navajo Nation for at least six (6) months immediately preceding the application.
      iii. A statement that he will serve process in accordance with the law.
      iv. Fees set pursuant to Rule 4(c)(3)(F) shall be paid at this time.
    (B) The application must be made under oath and notarized.
    (C)  Upon approval by the court or presiding judge, the applicant shall be registered with the clerk as a private process server until such registration is withdrawn.
    (D) The clerk shall maintain a register of private process servers and shall deliver to each server proof of registration.
    (E) A registered private process server shall serve in such capacity for any court of the Navajo Nation.
    (F) The judges of the Navajo Nation with the approval of the Supreme Court may set uniform fees for registration of private process servers.
4(d) Who May be Served; How Personal Service is Made. The following persons or entit[i]es may be served with process within the Navajo Nation.
  (1) Generally. Upon an individual or entity other than those specified in paragraphs (2), (3), (4) and (5) of this subdivision of this Rule: by delivering a copy of the summons and of the complaint to him personally or by leaving copies at his dwelling house or usual place of abode with some person sixteen (16) years or older then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.
  (2) Minor. Upon a minor under the age of sixteen (16): by service as set forth in Rule 4(d)(1), upon the minor and a parent or guardian of person and/or estate, or if none is found, then upon any person having the care or control of the minor, or with whom he resides.
  (3) Incompetent. Upon a person who has been judicially declared to be insane or mentally incompetent to manage his property and for whom a guardian has been appointed: by service as set forth in Rule 4(d)(1), upon such person and also upon his guardian, or if no guardian has been appointed, upon such person as the court designates.
  (4) Corporation.
    (A) Upon a corporation incorporated under Navajo law or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name: by delivering a copy of the summons and of the complaint to a partner, an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by law to receive service and the law so requires, by also mailing a copy to the defendant.
    (B) When a corporation incorporated under Navajo Law does not have an officer or agent in the Navajo Nation upon whom service of process can be made: by depositing two copies of the summons and of the complaint in the office of the Department of Commerce which shall be deemed personal service on such corporation. The return of the process server showing that after diligent search or inquiry the process server has been unable to find any officer or agent of such or corporation upon whom process may be served shall be prima facie evidence that the corporation does not have such an officer or agent in the Navajo Nation. The Department of Commerce shall file one of the copies in its office and immediately mail the other copy, by certified, to the office of the corporation, or to the president, secretary or any director or officer of such corporation as appears from the articles of incorporation or other papers on file in its office, or otherwise.
  (5) Navajo Nation. Upon the Navajo Nation: by complying with the requirements of the Navajo Tribal Code.
NNSC Commentary: The requirements for service on the Navajo Nation are contained in the Sovereign Immunity Act of the Navajo Tribal Code. That Act also requires that notice of intent to file suit must be given before the complaint can be filed. Counsel should check for notice of suit requirements. The Act also contains the time period in which the Navajo Nation as a defendant is allowed to answer the complaint.
4(e) Alternative Service.  When personal service cannot be made within the Navajo Nation alternative service may be made.
  (1) Who is Subject to Alternative Service. Alternative service may be had on the following defendants:
    (A) Nonresident of the Navajo Nation.
    (B) A resident of the Navajo Nation who is absent from the Navajo Nation.
    (C) One whose residence or address is unknown.
    (D) A corporation incorporated under the laws of any other jurisdiction which has no legally appointed agent in the Navajo Nation.
    (E) One who is concealing himself to avoid service of summons.
  (2) Methods of Alternative Service. Alternative service shall be made in the following order:
    (A) Personal Service Out of the Navajo Nation. Service out of the Navajo Nation may be made in the same manner provided in Rule 4(d)(1)-(4) by a person authorized to serve process under the law of the jurisdiction where such service is made or who is specially appointed by the Navajo district court. Service shall be complete when made and the time for appearance and answer shall begin to run at that time, provided that before any default may be had on such service, there shall be filed an affidavit of the party or his counsel justifying the use of personal service out of the Navajo Nation and attaching an affidavit of the process server showing the service.
    (B) Certified Mail. When the whereabouts. of a defendant, whether within or outside the Navajo Nation is known, but personal service cannot be made, the serving party may mail a copy of the summons and complaint by certified mail. Upon return of the receipt, an affidavit shall be filed with the court justifying the use of certified mail under Rule 4(e)(1); and (a) that a copy of the summons and complaint was mailed to the party being served; (b) that it was in fact received by the party as shown by the attached return receipt; (c) that the genuine receipt is attached; and (d) the date of the return of the sender. This affidavit shall be prima facie evidence of service of the summons and complaint and service shall be deemed complete upon filing of the affidavit.
  (3) Publication. Service by publication shall be made by publication of the summons in the Navajo Times or in the newspapers where the person resides, or in the newspapers of the person's last known residence for at least once a week for four successive weeks. The service shall be complete thirty (30) days after the first publication. The party shall, on or before the date of the first publication, mail a copy of the summons and of the complaint to the defendant at the defendant's last known address, if any. The plaintiff shall file an affidavit showing the publication and the mailing which shall be prima facie evidence of compliance, and if the address is unknown, the affidavit shall so state.
    (A) Motion for Publication. Before service by publication is ordered by the court, the party shall file an ex parte motion with an affidavit naming the newspapers in which publication shall be made and showing that other means of service has been tried and were unsuccessful.
  (4) Time for Appearance after Service Under Rule 4(e). Where service of a copy of the summons and complaint is made pursuant to Rule 4(e), the defendant shall appear and answer within thirty (30) days after completion in the same manner and under the same penalties as if the defendant had been personally served with a summons within the Navajo Nation.
4(f) Territorial Limits of Effective Service. All process may be served anywhere within the territorial limits of the Navajo Nation as defined at 7 N.N.C. § 253,70 and where authorized by these Rules, outside of the Navajo Nation.
4(g) Return. When the process is served by the Navajo Police, the return shall be officially endorsed and returned to the court promptly. If served by a person other than the Navajo Police, return and proof of such service shall be made promptly by affidavit. In either event the return shall be made within the time during which the person served must respond to process. Failure to make proof of syrvice does not affect the validity of service.
4(h) Return of Service of Publication. When the summons is served by publication, the return shall be in affidavit form showing when and how it was served and the dates of publication, and the affidavit shall be accompanied by a printed copy of the publication.
4(i) Amendment. The court may in its discretion allow any process or proof of service to be amended, unless it clearly appears that prejudice will result to the substantial rights of the party against whom the process issued.

RULE 5. Service and Filing of Subsequent Pleadings and other Papers.

5(a) Service: When Required. Except as otherwise provided in these Rules, every pleading, order, motion, notice, and every paper filed subsequent to the original complaint shall be served upon all the parties.
5(b) Service; How Made; Certificate of Service. If a party is represented by counsel, the service shall be made upon counsel unless the court orders otherwise. Service upon counselor upon a party shall be made by delivering a copy to such person or, by mailing it to the person's last known address. Service by mail is complete upon mailing. All pleadings and every paper filed with the court shall contain a certificate. of service showing the date and manner of service.
5(c) Filing. A copy of all pleadings filed with the court shall be served upon all the parties within five (5) days after the filing, unless the court orders otherwise.
5(d) Service After Judgment. After the time for appeal from a judgment has expired or a judgment has become final after appeal, service of a motion, petition, complaint or other pleading required to be served and requesting modification, vacation, or enforcement of that judgment, shall be served pursuant to Rule 4 as if serving a summons and a complaint.
5(e) Filing with the Court Defined. The filing of pleadings with the court under these Rules shall be made by filing them with the clerk of the court. Filing is complete after the pleadings have been stamped by the clerk with the court's stamp and the date and time of filing endorsed thereon and initialed by the clerk.

RULE 6. Time.

6(a) Computation. In computing time under these Rules, by order of court, or by any applicable statute, the date of the act event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a court holiday, in which event the period runs until the end of the next business day which is not a Saturday, a Sunday, or a court holiday.
6(b) Extension of Time. When by these Rules or by notice given thereunder or by order of court, an act is required to be done at or within a specified time, the court for good cause may (1) with or without motion or notice, order the period enlarged if request is made before the expiration of the period originally prescribed or as extended by a previous order; or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect, but it may not extend the time for any actions under Rules 50(b), 52(b), 59(e), and 60(c), except under the conditions stated in them.
6(c) Notice of Hearing on Motions. Notice of hearing on a motion shall be served on the parties at least ten (10) days before the time specified for the hearing, unless a different period is fixed by these Rules or by order of the court.
6(d) Orders to Show Cause. An order to show cause is returnable at the time and place the judge designates.
6(e) Additional Time after Service by Mail. Whenever a party is required to do some act or take some proceedings within a prescribed time after the service of a notice or other paper upon him and the notice or paper is served by mail, five days shall be added to the prescribed time. This subsection applies only after the filing of the complaint and service of process.
6(f) Dismissal of Action. An action shall be dismissed without prejudice if the summons is not issued and service completed within six months from the date of the filing of the complaint.


PART III. PLEADINGS AND MOTIONS
 

RULE 7. Pleadings Allowed.

7(a) Claims for Relief. Claims for relief allowed by these Rules are original claims or complaints, counterclaims, cross-claims and third­party complaints.
7(b) Answers. Answers shall be filed to an original claim or complaint, a counterclaim, a cross-claim and a third-party complaint.
7(c) Motions.
  (1) An application to the court for an order after the action is commenced shall be by written motion, unless made during a hearing or trial.
  (2) All motions must be accompanied by a memorandum containing a statement of the relief desired, the factual or legal grounds supporting the motion, and any other matters in support of the motion which are relevant. Briefs may be ordered in the discretion of the court.
NNSC Commentary: Generally briefs will not be required with the following motions: Continuance; Substitute Counsel; Entry of Appearance; Enforcement of Court Order; Default Judgment. These motions should be supported by affidavits or other factual material. In unusual circumstances the court may order briefs as part of the motion consideration.
  (3) Oral arguments may be permitted in the discretion of the court.

RULE 8. General Rules of Pleading.

8(a) Claims for Relief. A pleading which sets forth a claim for relief, including an original complaint, counterclaim cross-claim, or third-party claim, shall contain:
  (1) A short and plain statement for the court's jurisdiction, unless the court's jurisdiction is established by prior pleadings.
  (2) A short and plain statement of the facts giving rise to the action.
  (3) A short and plain statement of the claim showing that the pleader is entitled to relief.
  (4) A prayer for relief. Relief in the alternative may be requested.
8(b) Defense; Form of Denials. An answer shall state in short and plain terms the defenses to each claim asserted and shall admit or deny the statements in the claim for relief. The party filing the answer may deny a part of a statement and admit the rest. Any claim which is not admitted shall be deemed denied. If no responsive pleading is required, statements in the claim for relief shall be deemed denied. The party filing the answer has a duty to admit what he knows is true.
8(c) Affirmative Defenses.
  (1) These affirmative defenses must be pleaded at the time an answer is filed:
    (A) Release or settlement.
    (B) Assumption of the risk, contributory or comparative negligence, discharge in bankruptcy, and statute of limitations. These affirmative defenses not pleaded at the time an answer is filed shall be deemed waived.
  (2) These affirmative defenses may be pleaded at the time an answer is filed:
    (A) Duress
    (B) Estoppel
    (C) Failure of consideration
    (D) No consideration
    (E) Fraud
    (F) Illegality
    (G) Laches
    (H) Res judicata
    (I) Waiver and any other avoidance or affirmative defense.
  If these affirmative defenses are not pleaded at the time the answer is filed, they may be asserted thereafter only by leave of court upon written motion to amend the pleadings.
NNSC Commentary: The defendant may state the defense of contributory/comparative negligence using either or both terms. The defendant must show that plaintiffs negligence contributed to plaintiffs injury. 
RULE 9. Pleading Special Matters.
9(a) Capacity. It is not necessary to allege the capacity of a party to sue except to the extent required to show the jurisdiction of the court. When a party raises an issue as to the legal existence of any party or the capacity of any party to sue or be sued, he shall do so by specific allegation stating supporting facts which are within the pleader's knowledge.
 NNSC Commentary:  Rule 9(a) places burden on plaintiff in a private action to demonstrate he/she is the proper party entitled to relief in order to invoke the court's jurisdiction.  Graven v. Morgan, No. SC-CV-32-10 (Nav. Sup. Ct. Nov 9, 2012).
9(b) Fraud; Mistake; Condition of the Mind. In all allegations of fraud or mistake, the circumstances constituting fraud or mistake shall be specifically stated. Malice, intent, knowledge, and other condition of mind of a person may be alleged generally.
9(c) Time and Place. For the purpose of testing the sufficiency of a pleading, allegations of time and place are material and shall be considered like all other averments of material matter.
9(d) Special Damage. When items of special damage are claimed, they shall be specifically stated.
9(e) Complaint in Action or Libel or Slander. In an action for libel or slander, the complaint need not state the specific statement out of which the alleged claim arose, but may allege generally that the libel or slander was published or spoken concerning the plaintiff, and if the allegation is controverted, the plaintiff shall establish at the trial that it was so published or spoken.
9(f) Verification of Answer. Any responsive pleading raising the following matters, unless the truth of the pleading appears of record, shall be verified by affidavit of the party:
  (1) That the plaintiff does not have legal capacity to sue.
  (2) That the plaintiff is not entitled to recover in the capacity in which he sues.
  (3) That there is another action pending between the same parties for the same claim.
  (4) That there is a defect of parties, plaintiff, or defendant.
  (5) A denial of partnership, or of incorporation, of the plaintiff or defendant.
  (6) A denial of the execution by the defendant or by his authority of any instrument in writing upon which any pleading, is based, in whole or in part, and alleged to have been executed by him or by his authority, and not alleged to be lost or destroyed. When the instrument is alleged to have been executed by a person then deceased the affidavit must show that such instrument was not executed by the decedent or by his authority.
  (7) A denial of the genuineness of the endorsement or assignment of a written instrument.
  (8) That a written instrument upon which a pleading is based is without consideration, or that the consideration has faiLed in whole or in part.
  (9) That an account which is the basis of plaintiffs action and supported by an affidavit is not just, and in such case the answer shall set forth the items and particulars which are unjust.
RULE 10. Form of Pleadings.
10(a) Caption; Numbers of Parties. Every pleading shall contain a caption setting forth the name of the court, the title of the action, the case number, and a designation as in Rule 7 (a). In the complaint the title of the action shall include the names of all the parties, but in subsequent pleadings the names of the first party on each side may be stated followed by the designation "et al."
10(b) Paragraph; Separate Statement. All statements of a claim or defense shall be made in numbered paragraphs. Each paragraph shall be limited to a statement of a single set of circumstances, and a paragraph may be referred to by number in all succeeding pleadings.
10(c) Inclusion by Reference; Exhibits. Statements in a pleading may be included by reference in a different part of the same pleading or in another pleading or in a motion. A copy of a writing which is an exhibit to a pleading becomes a part of the pleading. An exhibit attached to a pleading remains subject to the Rules of Evidence.
10(d) Method of Preparation and Filing.
  (1) Court Documents: Form.
    (A) Size of paper. All pleadings submitted to the court for filing shall be on paper 8 1/2 inches wide by 11 inches long. The typed matter must be double spaced.
    (B) Form and Content of Pleading. The following. information must be contained on the first page of every pleading, and such information may be single-spaced:
      i. The name, address, and telephone number or counsel representing the party, and whether the counsel appears for the plaintiff, defendant, or other party must be typewritten or printed in the space to the left of the center of the paper and beginning at the first line typed or printed on the page. The space to the right of the center is reserved for filing information.
      ii. The title of the court will be centered and begin below the counsel and party identifying information.
      iii. Below the title of the court, the title of the action must be placed to the left of the center of the paper. In the space to the right of the center, there must be (A) the docket number of the action, (B) the title of the pleading or document.
  (2) Court Documents: Filing. The clerk of the court may reject any pleading or document where the party fails to offer a required court form for filing or where the party fails to comply with a statute or rule requiring particular information or copies of certain documents.
RULE 11. Signing of the Pleadings.
NNSC Commentary: This Rule reflects the standards of practice which make counsel officers of the court and which require counsel to advise the court consistent with justice.
11(a) Certificate of Counsel.
  (1) The signature of counsel, of of any person representing himself, must be contained on a pleading or other document submitted to the court or other documents as provided in this Rule. The signature is a certificate that the pleading or document is submitted in good faith and that the matters of fact or law contained in the papers are made in good faith, are believed to be true and accurate, and are based upon a reasonable investigation of or research of those asserted statements of fact or law.
  (2) No pleading or document need contain a sworn statement that the matters contained in it are true or true upon the person's knowledge and belief unless verification is required by a statute, rule of court or customary practice, as in seeking extraordinary relief. Parties shall be bound by affidavits and exhibits filed by them, and counsel shall make an adequate investigation of the facts of an affidavit to make certain there is an independent review of their contents.
  (3) The signature of counsel on a pleading is a certificate that counsel is a member in good standing of the Navajo Nation Bar Association.
11(b) Sanctions.  The court may impose sanctions if it finds that a pleading is not submitted in good faith, or if it contains material misstatements of fact or law, or if it is not based upon an adequate investigation or research. Sanctions may include striking a pleading or document, assessing costs of opposing the pleading or document against a party or counsel, assessing counsel fees for resisting the pleading or document against a party or counsel, or granting other relief which may be appropriate under the circumstances.
RULE 12. Defenses and Objection: When and How Presented; By Pleading or Motion; Motion for Judgment on Pleading.
12(a) When Presented. A defendant shall serve and file an answer within 30 days after being served with the summons and complaint. A party served with a cross-claim shall serve and file an answer within twenty (20) days after the service. The plaintiff shall serve and file a reply to a counterclaim within twenty (20) days after service. The service of a motion under this. Rule alters these periods of time as follows, unless a different time is fixed by order of the court:
  (1) If the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within ten (to) days after notice of the court's action.
  (2) If the court grants a motion for a more definite statement the responsive pleading shall be served within ten (10) days after service of the more definite statement.
12(b) How Presented; Motion to Dismiss. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading if one is required, except that the following defenses may at the option of the pleader be made by motion prior to responsive pleading:
NNSC Commentary: Motions under this Rule may be accompanied by a responsive pleading. If the motion is filed by itself and is denied or postponed until trial on the merits, the responsive pleadings must be filed within ten days of the court's action on the motion. See Rule 12(a)(1).
  (1) Lack of jurisdiction over the subject matter.
  (2) Lack of jurisdiction over the person.
  (3) Improper venue.
  (4) Insufficiency of process.
  (5) Insufficiency of service of process.
  (6) Failure to state a claim upon which relief can be granted.
  (7) Failure to join a party under Rule 19.
  No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense ill law or fact to that claim for relief. If, on a motion to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made relevant to such a motion by Rule 56.
12(c)
Motion for Judgment on the Pleading. At any time, but not to delay the trial, any party may move for judgment on the pleadings. If, in a motion for judgment on the pleadings, matters outside the pleadings are presented to the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made relevant to such a motion by Rule 56.
12(d) Preliminary Hearings. The defenses enumerated in Rule 12(b)(1)-(7), whether made in a pleading or by motion, and the motion for judgment on the pleadings, shall be decided before trial, unless the court orders that the matter be deferred until trial.
NNSC Commentary: The defendant may request that the court conduct a hearing on a motion to dismiss filed under Rule 12(b) or 12(c).
12(e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is vague or unclear, a party may move for a more definite statement before filing his responsive pleading. The motion shall state the defects and the details desired. If the motion is granted and the order of the court is not obeyed within such time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.
12(f) Items of Account; Demand. The party pleading need not state the items of an account alleged in the pleading, but if demand is made in writing for the items of account, the adverse party shall file and serve a copy of the account within ten (10) days after demand, or be precluded from giving evidence thereon. The court may order a further account when the account delivered is too general or is defective.
NNSC Commentary: An account is a statement in writing of monetary transactions and may include payments, losses, sales, debits, credits, etc.
12(g) Motion to Strike. Upon motion made by a party or upon the court's own motion, the court may order stricken from a pleading any insufficient defense or any redundant, immaterial, irrelevant, frivolous or scandalous matter.
12(h) Consolidation of Defenses in Motion. A party who makes a motion under. this Rule may join with it any other motions then available.
12(i) Waiver or Preservation of Certain Defenses. A party waives any defense and objection under Rule 12(b), which is not presented either by motion or responsive pleading except:
  (1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived if it is not made by motion under this Rule or included in a responsive pleading or an amendment permitted by Rule 15(a).
  (2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in a pleading permitted or ordered under Rule 7, or by motion for judgment on the pleadings, or at the trial on the merits.
  (3) Whenever the court lacks jurisdiction of the subject matter, the court shall dismiss the action.
NNSC Commentary: Lack of subject matter jurisdiction renders a judgment void. Lack of subject matter jurisdiction may be noticed by the court at anytime, even after judgment is entered
RULE 13. Counterclaim and Cross­Claim.
13(a) Compulsory Counterclaims. A pleading shall state as counterclaim any claim which arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under Rule 13.
13(b) Permissive Counterclaim. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.
13(c) Counterclaim Exceeding Opposing Claim. A counterclaim mayor may not defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or of a different kind from that sought in the pleading of the opposing party.
13(d) Counterclaim Maturing or Acquired After Pleading. A claim which either matured or was acquired by the pleader after serving his pleading may, with the permission of the court, be presented as a  counterclaim by supplemental pleading.
13(e) Omitted Counterclaim. When a pleader fails to state a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court make the counterclaim by amendment.
13(f) Cross-claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim or relating to any property that is the subject matter of the original action. The cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross­claimant.
13(g) Joinder of Additional Parties. Persons other than those made parties to the original action maybe made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 or 20.
13(h) Separate Trial; Separate Judgments. If the court orders separate trials as provided in Rule 40(b), judgment on a counterclaim or cross­claim may be rendered in accordance with Rule 54(b) when the court has jurisdiction to do so even, if the claims of the opposing party have been dismissed or otherwise disposed of.
RULE 14. Third-party Practice.
14(a) Third-Party Complaint. At any time after the commencement of the action, a defendant may bring in a person not a party to the action, who is, or may be liable to the defendant for all or part of the plaintiffs claim against the defendant.
14(b) Form and Content of Third-party Pleadings.
  (1) The defendant bringing in the third-party is the third-party plaintiff.
  (2) The person served with the third-party complaint is the third-party defendant.
  (3) The third-party defendant shall defend to the third-party plaintiffs claim as provided in Rule 12.
  (4) The third-party defendant shall assert counterclaims against the third-party plaintiff as provided in Rule 13.
  (5) The third-party defendant may assert cross-claims against other third-party defendants as provide in Rule 13.
  (6) The third-party defendant may assert against the plaintiff any defense which the third-party plaintiff has to the plaintiffs claim.
  (7) The third-party defendant may assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiffs claim against the third­party plaintiff.
  (8) The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiffs claim against the third­party plaintiff.
  (9) Upon assertion of a claim by the plaintiff, the third-party defendant shall assert his defenses as provided in Rule 12 and his counterclaims and cross-claims as provided in Rule 13.
  (10) Any party may move to strike the third­party claim, or for its severance, or separate trial.
  (11) A third-party defendant may proceed under this Rule against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third-party defendant.
14(c) Service. A third-party defendant is brought in by service upon him of a summons and complaint as provided in Rule 4.
14(d) When Plaintiff May Bring in Third­Party. When a counterclaim is asserted against a plaintiff, he may bring in a third-party under this Rule.
RULE 15. Amended and Supplemental Pleadings.
15(a) Amendments.
  (1) A party may amend his pleading once at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may amend it at any time within twenty (20) days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party except for the defenses designated in Rule 12(i)(l). Leave to amend shall be freely given when justice requires.
  (2) A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within ten (10) days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders.
15(b) Relation Back of Amendments. Whenever the claim or defenses asserted in the amended pleading arose out of the transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. Service of process upon new parties must comply with Rule 4.
15(c) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the original pleading.
RULE 16. Pretrial Conference; Scheduling; Management.
16(a) Pretrial Conferences; Objectives. The court may in its discretion or upon motion of the parties direct the counsel for the parties and any unrepresented parties to appear for a conference before trial for such purposes as:
  (1) expediting the disposition of the action;
  (2) establishing early and continuing control so that the case will not be protracted because of lack of management;
  (3) discouraging wasteful pretrial activities;
  (4) improving the quality of the trial through more thorough preparation; and
  (5) facilitating the settlement of the case.
 NNSC Commentary:  In our dual-culture courts, our rules require there must be observed the two stages:  (1) the pretrial conference wherein settlement is facilitated and horizontal decision-making is encouraged using informal methods, including Diné traditional methods; and (2) the trial phase.  The development of our court system plainly imposes a duty on our Navajo Nation judges to use Diné methods of informal discussion whenever permissible, primarily to aid horizontal decision-making by the parties themselves.  Rules of court must be observed in the trial phase. However, the Supreme Court has determined that Rule 16(a) clearly provides a window for a court to informally proceed using Diné methods of dispute resolution to facilitate settlement, during which the court is not constrained by rule-based formalities. A court must maintain the distinction between the pretrial and trial hearing.  If courts maintain this distinction, then the use of traditional methods in our court system will work.  Manning v. Abeita, No. SC-CV-66-08 (Nav. Sup. Ct. Aug 1, 2011).
16(b) Scheduling and Planning. Upon its own motion or upon motion of the parties, the court may, after consulting with the counsel for the parties and any unrepresented parties by a pretrial conference, telephone, mail, or other suitable means, enter a scheduling order that sets deadlines for joining other parties and amending pleadings; serving and hearing motions; and completing discovery.

The scheduling order may also include: the date or dates for conferences before trial, a final pretrial conference, and trial; and any other matters appropriate in the case.

If the court determines after consultation that a scheduling order is appropriate, the order shall be issued promptly. A schedule shall not be modified except by leave of court upon a showing of good cause.

16(c) Subjects to be Discussed at Pretrial Conferences. The participants at pretrial conference may act on:
  (1) the formulation and simplification of the issues, including the elimination of frivolous claims or defenses;
  (2) the necessity or desirability of amendments to the pleadings;
  (3) the possibility of obtaining admissions of fact and documents which will avoid unnecessary proof, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence;
  (4) the identification of those Navajo customs or traditions which may be used to resolve the dispute.
  (5) the avoidance of unnecessary proof and of cumulative evidence;
  (6) the identification of witnesses and documents, the need and schedule for filing and exchanging pretrial briefs, and the date or dates for further conferences and for trial;
  (7) the possibility of settlement, or the use of extrajudicial procedures or the Navajo peacemaker courts, to resolve the dispute;
  (8) the form and substance of the pretrial order;
  (9) the disposition of pending motions;
  (10) the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal problems, or unusual proof problems; and
  (11) such other matters as may aid In the disposition of the action.
16(d) Final Pretrial Conference. Any final pretrial conference shall be held as close to the time of trial as reasonable under the circumstances. The participants at pretrial conference shall formulate a plan for trial, including a program for facilitating the admission of evidence.
16(e) Pretrial Orders. After any pretrial conference, an order may be entered which shall control the subsequent course of the action unless modified by a subsequent order to prevent injustice.
16(f) Sanctions. If a party or counsel fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party's counsel is substantially unprepared to participate in the conference, or if a party or party's counsel fails to participate in good faith, the court may in its discretion or upon motion of any party enter appropriate sanctions
16(g) Pretrial statements. Counsel for the parties or the parties together shall prepare a joint pretrial statement prior to attending a final pretrial conference which shall contain the following and shall be submitted to the court at the time of the final pretrial conference:
  (1) The uncontested facts deemed material.
  (2) The uncontested issues of fact and law as the parties or counsel can agree are material or applicable.
  (3) A separate statement by each party of other issues of fact or law which that party believes material.
  (4) A list of the witnesses intended to be used by each party during the trial, other than those intended to be used solely for impeachment. No witnesses shall be used at the trial other than those listed, except to prevent injustice.
  (5) A list of the exhibits which each party intends to use at trial, other than those intended to be used solely for impeachment, specifying exhibits which the parties agree are admissible at trial. No exhibits shall be used during the trial other than those listed, except to prevent injustice.


PART IV. PARTIES
 

RULE 17. Parties Plaintiff and Defendant; Capacity.

17(a) Real Party in Interest.  Every action shall be prosecuted in the name of the real party in interest. An executor administrator, or guardian appointed in the Navajo Nation, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining the party for whose benefit the action is brought. No action shall be dismissed because it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action has been commenced in the name of the real party in interest.
17(b) Actions By or Against Personal Representatives. Actions for the recovery or possession of property, real or personal, or to quiet title thereto, or to determine an adverse claim thereto, and all actions founded upon contracts, may be maintained by or against an executor or administrator or an estate in all cases in which such actions might have been maintained by or against his testator or intestate.
17(c) Actions Against Surety, Assignor or Endorser. The assignor, endorser, guarantor and surety upon a contract, and the drawer of a bill which has been accepted, may be sued without the maker, acceptor or other principal obligor when the latter resides beyond the jurisdictional reach of the Navajo Nation, or when his residence is unknown and cannot be ascertained by the use of reasonable diligence, or when he is dead, or insolvent.
17(d) Infants or Incompetent Persons. Whenever an infant or incompetent person has a representative, such as a general guardian, or similar fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative he may sue by his next friend or by a guardian ad litem; The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make orders for the protection of the infant or incompetent person.
17(e) Bond of Guardian Ad Litem or Next Friend. If an action is brought for the minor or incompetent person by his next friend or guardian ad litem, the next friend or guardian ad litem shall not receive any money or property of the minor or incompetent until such friend or guardian files a bond as security if the court deems necessary, or other form of security in such form and with such surety as the court may prescribe and approve.
17(f)

Consent of Guardian Ad Litem or Next Friend; Liability; Compensation. No person shall be appointed guardian ad litem or serve as next friend except upon written consent filed by the person. The person shall not be personally liable for costs connected with the action unless by order of the court. The court may allow reasonable compensation for services.

17(g)

Partnerships and Corporations. Any partnership, corporation, or any unincorporated association may sue and be sued in the name which it has assumed or by which it is known.

RULE 18. Joinder of Claims and Remedies.

18(a) Joinder of Claims. A party asserting a claim for relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal or equitable, as he has against an opposing party.
18(b) Joinder of Remedies; Fraudulent Conveyances. Whenever a claim is one recognized only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action, but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a claim for money and a claim to set aside a fraudulent conveyance without first having obtained a judgment establishing the claim for money.

RULE 19. Joinder of Persons Needed for Just Adjudication.

19(a) Compulsory Joinder. If feasible, a person must be made a party in an action if:
  (1) Complete relief cannot be given to those already parties unless such person is made a party; or
  (2) The person claims an interest relating to the subject of the action and disposition of the action without the party may:
    (A) impair or impede his ability to protect that interest; or
    (B) leave any of the parties subject to a substantial risk of multiple or inconsistent liability by reason of the claimed interest.
19(b) Joinder Must be Feasible. A person shall be made a party under this Rule only if joinder is feasible:
  (1)  Joinder will not deprive the court of subject matter jurisdiction; and
  (2) The person to be joined IS subject to service of process.
19(c) Pleading. A failure to join an indispensable party is raised as an affirmative defense under Rule l2(b).
19(d) Determination by Court if Joinder not Feasible. If joinder is not feasible under Rule 19(b) the court must determine whether the action should proceed or be dismissed. The factors to be considered by the court include:
  (1) The extent to which a judgment rendered in the person's absence might be prejudicial to him or those already parties;
  (2) The availability of alternatives such as other pleadings or remedies; and
  (3) Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

RULE 20. Permissive Joinder of Parties.

20(a) Plaintiffs. All persons may join In one action as plaintiffs if:
  (1) They assert any right to relief jointly, severally, or in the alternative; and
  (2) The claims are in respect to or arise out of the same transaction or occurrence, or series of transactions or occurrences; and
  (3) Any question of law or fact common to all these persons will arise in the action.
20(b) Defendants. All persons may be joined as defendants in an action if:
  (1) Relief is asserted against them jointly, severally, or in the alternative; and
  (2) The claims against them are in respect to or arise out of the same transaction or occurrence, or series of transactions or occurrences; and
  (3) Any question of law or fact common to all defendants will arise in the action.
20(c) Relief. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be entered in accordance with the respective rights and liabilities of the parties.
20(d) Separate Trials. The court may order separate trials or make other orders to prevent delay or prejudice.
RULE 21. Misjoinder and Non-joinder of Parties.
  Misjoinder of parties is not grounds for dismissal of an action; parties may be dropped or added by order of the court on motion of any party, or on its own order, at any stage of the action on such terms as are just. Any claim against a party may be severed and proceeded with separately
NNSC Commentary: This Rule prevents dismissal of an action because certain persons or entities have or have not been made parties. Even though parties are added or dropped at any stage of the proceeding, this is not a ground for dismissing the whole case. This Rule deals with parties. Rule 15(a) does not conflict. Rule l5(a) sets forth when the content of pleadings may be amended.

RULE 22. Interpleader.

NNSC Commentary: Interpleader is more a procedural device than a matter of substantive law. An interpleader action. permits a stakeholder (generally an insurance company or a debtor), who has a set sum of money or an item or property to which there is more than one claimant, to ask the court to determine the rights and interests of each claimant and the amount to which each is entitled. The stakeholder admits that the money or property belongs to someone but is legally unable to determine the rightful claimant. The person or entity seeking interpleader may have no interest in the stake or may be a party asserting a claim to all or part of the stake.
22(a) Interpleader. Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. A defendant exposed to similar liability may obtain such interpleader by way of cross-claim. The provisions of this Rule supplement and do not in any way limit the joinder of parties permitted in Rule 20.
  (1) The plaintiff must deposit the disputed funds or property or the amount of the instrument or obligation with the court.
  (2) The court may issue its process for all claimants and enter its order restraining them from instituting or prosecuting any proceeding in any. other tribal court or any state or United States court affecting the property instrument or obligation involved in the interpleader action until further order of the court.
22(b) Objections. The following will not defeat joinder in an interpleader action:
  (1) The claims or the titles upon which the claims depend do not have a common origin or are not identical.
  (2) The claims or the titles upon which the claims depend are adverse to and independent of one another.
  (3) The plaintiff alleges that he is not liable in whole or in part to any or all of the claimants.
22(c) Release from Liability; Deposit or Delivery. Any party invoking an interpleader action may move the court for an order discharging him from liability to any of the parties upon depositing the disputed funds or property with the court.
22(d) Preservation of Property or Funds. Upon receipt of disputed funds or property the court shall take adequate measures for the safeguarding and preserving of the funds or property. Funds may be deposited into interest bearing accounts established for that purpose. Upon final disposition of the funds, the interest earned shall be awarded to the parties in the same percentages as the principal funds
RULE 23. Class Actions.
23(a) When Permitted. When potential plaintiffs or defendants are too numerous for joinder, one or more representative persons or entities may bring or defend an action on behalf of all.
23(b) Court Order. Within ninety (90) days after a class action is filed the court shall issue an order stating whether the class action will be allowed, the terms and conditions upon which the matter shall proceed, and how notice shall be given to the members of the class.
23(c) Considerations. In making the order required in Rule 23(b), the court shall consider the following:
  (1) Whether the representative(s) will adequately protect the interests of the class.
  (2) Whether there are questions of law or fact common to the class.
  (3) Whether the claims or defenses of the representative parties are typical of the claims or defenses of the class.
  (4) Whether separate actions by or against individual members of the class might result in contradictory or incompatible decisions.
  (5) The interests of the members in individually controlling separate actions.
  (6) Any other factors raised by the parties or appearing to the court which the effective and efficient administration of justice require be considered.
23(d) Notice. All members of the class shall be notified of the action pursuant to the order of the court under Rule 23(b), in a manner deemed reasonable by the court. after considering all relevant circumstances including the desirability of achieving the goal of actual notice to all class members when this can be accomplished with reasonable efforts. The notice shall contain the following:
  (1) That any member may be excluded from the class by filing a written request with the court by a certain date.
  (2) That the judgment, whether favorable or not, will include all members who do not request exclusion.
  (3) That the judgment, will not include members who request exclusion from the class.
  (4) That if a member does not request exclusion he may, at his option, enter an appearance through counsel.
23(e) Dismissal; Settlement. No class action shall be dismissed or settled without approval of the court and notice to all the members of the class in such manner as the court directs.

RULE 24. Intervention.

  A person who is not a party may enter a case upon filing a motion.
NNSC Commentary: Intervention is distinguished from Interpleader. Intervention is a method whereby a person claiming an interest in the matter in litigation may become a party in the pending case.
24(a) Intervention of Right. Upon a timely motion, anyone shall be permitted to intervene if:
  (1) A law of the Navajo Nation confers an unconditional right to intervene; or
  (2) The person seeking to intervene claims an interest relating to the property or transaction which is the subject of the action and disposition of the action may as a practical matter impair or impede the person's ability to protect that interest.
24(b) Permissive Intervention. Upon timely motion, anyone may be permitted to intervene if:
  (1) A law of the Navajo Nation confers a conditional right to intervene; or
  (2) The claim or defense of the person seeking to intervene has a question of law or fact in common with the main action.
24(c) Procedure. A motion to intervene shall be filed with the court and served upon the parties as provided in Rule 5. The motion shall state the grounds for intervention and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.
24(d) Time to Answer. If the motion to intervene is granted, the parties shall be allowed twenty (20) days after service to answer the pleading of the intervenor.

RULE 25. Substitution of Parties.

25(a) Death.
  (1) If a party dies and the claim is not extinguished, the court may order substitution of the parties upon motion for substitution by any party or by the successors or representatives of the deceased party. Notice of substitution shall be served on the parties as provided in Rule 5 and upon persons not parties as provided in Rule 4 for the service of summons. Unless the motion for substitution is made not later than 90 days after the death is entered upon the record by service of a statement of the fact of the death, as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.
  (2) In the event of the death of one or more of the plaintiffs, or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the right sought to be enforced survives only to the surviving plaintiffs or defendants. The death shall be entered upon the record and the action shall proceed in favor of or against the surviving parties.
25(b) Death of Defendant After Tort Action Commenced. An action to recover damages for injuries to the person, or for property damage, or death caused by the wrongful act, default or neglect of another, shall not end with the defendant's death, and the personal representative may be substituted as the defendant. If the action is against a receiver, assignee or trustee, and such receiver, assignee or trustee dies, resigns or is removed from office, his successor in office may be substituted as defendant. The action shall then proceed to judgment as if the defendant had remained alive, or the original receiver, assignee, or trustee had continued in office.
25(c) Incompetency. If a party becomes incompetent, the court upon motion served as provided in Rule 25(a), may allow the action to be continued by or against his representative.
25(d) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in Rule 25(a).
25(e) Public Officers; Death or Separation from Office.
  (1) When a public officer is a party to an action in an official capacity and during its pendency dies, resigns or otherwise ceases to hold office, the action does not cease and the successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any incorrect identification not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.
  (2) When a public officer sues or is sued in an official capacity, he may be described as a party by his official title rather than by name; but the court may order his name be added.


PART V. DEPOSITION AND DISCOVERY
 

RULE 26. General Provisions Governing Discovery.

26(a) Discovery Purpose. The purposes of discovery are to allow parties to prepare for trial, to limit a party being surprised at trial, and to define and limit the facts and issues actually in dispute.
NNSC Commentary: The purpose of discovery is to avoid surprise and to enable the parties to fully prepare for trial. The purpose of retrial preparation is to enable the parties to present the relevant facts and law to the judge and/or jury as completely and expeditiously as possible. As officers of the court, counsel should make use of discovery methods to facilitate the prompt and efficient administration of justice.
  (1) Discovery method. 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 for inspection and other purposes; physical and mental examinations; and requests for admissions.
26(b) What May be Discovered.
NNSC Commentary: Discovery may be broader than evidence admissible at trial.
  (1) Generally. Parties may discover any relevant matter, not subject to an evidentiary privilege, which pertains to any fact or issue involved in the pending action. Discovery may be had of information that may be inadmissible at trial if it appears likely the information sought will lead to the discovery of admissible evidence.
  (2) Insurance Agreements. A party may discover the existence and contents of any insurance agreement which may be available to satisfy a judgment or reimburse or indemnify one who pays a judgment.
  (3) Trial Preparation.
    (A) Materials. A party may discover documents and tangible things prepared for litigation by another party or the party's representative. The party seeking discovery must show:
      i. A substantial need of the materials in preparation of its case, and
      ii. Is unable to obtain the materials or their substantial equivalent without undue hardship,
      iii. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
    (B) Statements of a Party. A party may obtain a statement concerning the action or its subject matter previously made by that party. The statement may be written and signed or approved by the person making it or it may be a statement recorded by a stenographer or a machine at the time the statement was made.
    (C) Experts. A party may discover through interrogatories addressed to a party the following information regarding experts consulted or employed by another party in connection with the pending action:
      i. Identity of experts the party expects to present at trial.
      ii. To state the subject matter on which the expert is expected to testify.
      iii. A summary of the facts and opinions to which the expert is expected to testify and the grounds for each opinion.
      iv. 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.
      v. Unless injustice would result the party seeking discovery shall pay the expert a reasonable fee for time spent in responding to the party's discovery requests.
26(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, or alternatively on matters relating to a deposition, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including but not limited to one or more of the following:
NNSC Commentary: Even after discovery has been had, the responding party has a duty to supplement or amend responses. Failure to supplement may, in the discretion of the court where the action is pending, be subjected to the sanctions of Rule 37.
  (1) that the discovery not be had;
  (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;
  (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
  (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
  (5) that discovery be conducted with no one present except persons designated by the court;
  (6) that a deposition, after being sealed, be opened only by order of the court;
  (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;
  (8) that the parties simultaneously file specified documents or information in sealed envelopes to be opened as directed by the court.
  If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. Rule 37(a)(4) applies to the award of expenses incurred by the motion.
26(d) 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.
26(e) Supplementation of Responses. A party is under a continuing duty to supplement or amend responses to discovery requests or questions if:
  (1) The responding party obtains information which shows a prior response was incorrect;
  (2) The responding party obtains information which shows that the prior response although correct when made is no longer true and failure to amend would be in substance a knowing concealment;
  (3) The question or request pertains to:
    (A) The identity and location of persons having knowledge of discoverable material.
    (B) The identity of each person expected to be called as an expert witness at trial, the subject matter on which testimony is expected, and the substance of the testimony.
    (C) The identity of any other person expected to be called as a witness at trial.
  Any witness not identified in accordance with this Rule or Rule 16 shall not be permitted to testify except to prevent injustice or upon written agreement of the parties.
26(f) Signing of Discovery Requests; Responses; Objections. Rule l1(a) applies to each request for discovery, or response, or objection.
RULE 27. Depositions Pending Appeal.
  If a judgment is appealed, or before taking an appeal if the time has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the court. In such case the party who desires to perpetuate the testimony may make a motion in the district court for leave to take the depositions, upon the same notice and service as if the action was pending in the court. The motion shall state the names and addresses of the persons to be examined, the substance of the testimony, and the reasons for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions and may make orders under Rules 34 and 35 and thereupon the depositions may be taken and used under the same conditions as are prescribed in these Rules for depositions taken in actions pending in the district court.

RULE 28. Persons Before Whom Depositions May be Taken.

28(a) Persons Authorized. Depositions shall be taken before a person authorized to administer oaths by the courts of the Navajo Nation, by a certified court reporter, or by a person authorized by the laws of the place where the examination is held.
28(b) Notice. Depositions may be taken in the Navajo Nation or anywhere upon notice as provided by these Rules.
28(c) Disqualification for Interest. No deposition shall be taken before a person who is a relative or employee or counsel of any of the parties or is financially interested in the action.

RULE 29.  Stipulation Regarding Discovery Procedure.

  Unless the court orders otherwise, the parties may by 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 the procedures provided by these Rules for other methods of discovery, including extending the time provided in Rules 33, 34, and 36 for responses to discovery.

RULE 30. Depositions Upon Oral Examination.

30(a) When Depositions May be Taken. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. The attendance of witnesses may be compelled by subpoena as provided in Rule 45:
30(b) Notice of Examination.
  (1) A party desiring to take the deposition of any person upon oral examination shall serve reasonable notice in writing to every other party to the action. The notice shall state:
    (A) The time and place for taking the deposition.
    (B) 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 him or the particular class or group to which he belongs.
    (C) How the deposition will be recorded.
    (D)  The name of the person before whom the deposition will be taken.
    (E)  If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice.
  (2) Leave of court is not required for the taking of a deposition. The notice of deposition must be filed with the court before or at the time it is served.
  (3) The notice to a party deponent may be accompanied by a request under Rule 34 for the production of documents and tangible things at the taking of the deposition. The procedures of Rule 34 shall apply to the request.
  (4) A party may, in its notice, name as the deponent a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the matters on which examination is requested. The organization named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may list, for each person designated the matters on which the person will testify. The persons designated shall testify on matters known or reasonably available to the organization.
30(c) Examination and Cross-examination. Persons being deposed may be examined and cross-examined. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness.

All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted for the record by the officer upon the deposition. Evidence objected to shall be taken subject to the objections.

30(d) Termination or Limitation or Examination. At any time during the taking of the deposition, if a party or the deponent reasonably believes that the examination is being conducted in bad faith or in a manner as to unreasonably annoy, embarrass, or oppress the deponent or party, the party or deponent may ask the deposing party to stop taking the deposition, or to limit the scope and manner of the taking of the deposition. If the request is denied the objecting party or deponent may suspend the taking of the deposition for the time necessary to make a motion to the district court for an order to limit the scope and manner of taking the deposition. It shall be the responsibility of the party or deponent suspending the deposition to make a motion to the district court within five (5) days. Rule 37(a)(4) applies to the award of expenses incurred for the motion.
30(e) Transcription. Any party who wants the testimony transcribed shall make such arrangements with the person before whom the deposition is taken.
30(f) Submission to Witness; Changes; Signing. When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and reading unless such examination and reading are waived by the witness and by the parties. Any change in form or substance which the witness makes shall be attached to the deposition by the officer with a statement of the reasons given by the witness for change. The witness shall sign the deposition, unless the parties stipulate to waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness within twenty (20) days of its submission to him, the officer shall sign it and state on the record the waiver or of the illness or absence of the witness or of the refusal to sign with the reason given, if any, and the deposition may then be used as though signed, unless on a motion to suppress under Rule 32(c)(4), the court finds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.
30(g) Certification and Filing by Officer; Exhibits; Copies; Notice of Filing; Preservation of Notes and Tapes of Depositions.
  (1) The officer shall certify on the deposition that the witness was duly sworn and that the deposition is a true record of the testimony given by the witness. Unless otherwise ordered by the court, the officer shall then seal the deposition in an envelope endorsed with the title of the action and marked "Deposition of [insert name of witness]" and promptly file it with the court in which the action is pending or send it by registered mail or certified mail to the clerk for filing.

Documents and things produced for inspection during the examination of the witness, shall, upon the request of a party, be marked for identification and annexed to the deposition. They may be inspected and copied by any party, and if the person producing the materials retains them he may (A) offer copies to be marked for identification and annexed to the deposition and to serve as originals if he gives all parties fair opportunity to verify the copies by comparison with the originals, or (B) offer the originals to be marked for identification, after giving each party an opportunity to inspect and copy them, in which event the materials may then be used as if annexed to the deposition. Any party may move for an order that the original be annexed to an[d] returned with the deposition to the court, pending final disposition of the case.

  (2) Upon payment of reasonable charges, the officer shall furnish a copy of the deposition to any party or to the deponent.
  (3) The party taking the deposition shall give prompt notice of its filing to all other parties.
  (4) The officer shall preserve and retain for a period of 10 years all original notes and stenographic tapes taken or recorded during a deposition, which shall be retained by the officer in place and manner to be available to the court or any party upon request.
30(h) Failure to Attend or to Serve Subpoena; Expenses.
  (1) If the party giving notice of the taking of a deposition fails to attend and proceed and the deponent or another party attends in person or by counsel pursuant to the notice, the court may order the party giving the notice to pay the deponent and the other party the reasonable expenses incurred for attending, including reasonable attorney's fees where appropriate.
  (2) If the party giving notice of the taking of a deposition of a witness fails to serve a subpoena and the witness, because of such failure, does not attend, and if another party attends in person or by counsel because he expects the deposition of that witness to. be taken, the court may order the party giving notice to pay the other party the reasonable expenses incurred for attending, including reasonable attorney's fees.
30(i) Depositions for Foreign Jurisdiction. When an action is pending in any jurisdiction foreign to the Navajo Nation and a party or his counsel wishes to take a deposition in the Navajo Nation, it may be done in accordance with the provisions of this Rule and a subpoena or subpoena duces tecum may be issued from the district court of the Navajo Nation. The party or his counsel shall file, as a civil action, an application under oath, captioned as is the foreign action, which contains the following information:
    (A) The caption of the case and the court in which it is pending including the names of all parties and the names of the counsels for the parties;
    (B) References to the law of the jurisdiction in which the action is pending that authorized the taking of the deposition in the Navajo Nation and such facts as, under that law, entitle the party to take the deposition and have a subpoena issued for the attendance of the witness;
    (C) A certified copy of the notice of taking deposition, order of the foreign court authorizing the deposition, commission or letter (TEXT MISSING) interrogatory or such other pleadings as, under the law of the foreign jurisdiction, are necessary to take the deposition;
    (D) A description of the notice given to other parties of the filing of the application and a description of the means of service of the approved application proposed to be made upon other parties to the action. A hearing may be set if a party opposes the application.

Upon the filing of the application the court for the district in which the deposition is to be taken may issue the subpoena or subpoena duces tecum as requested by the application. An affidavit of service of the application upon all other parties to the civil action shall be filed with the clerk of the court.

RULE 31. Deposition Upon Written Questions.
31(a) Serving Questions; Notice. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena under Rule 45.

A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating (1) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs, and (2) the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency pursuant to Rule 30(b)(4).

Within thirty (30) days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within ten (] 0) days after being served with cross questions, a party may serve redirect questions upon all other parties. Within ten (10) days after being served with redirect questions, a party may serve recross questions upon all other parties. The court may enlarge or shorten the time for cause.

31(b) Officer to Take Responses and Prepare Record. A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, pursuant to Rule 30( c), (f), and (g), to take the testimony of the witness in response to the questions and to prepare, certify, and file or mail the deposition, attaching the copy of the notice and the questions.
31(c) Notice of Filing. When the deposition is filed the party taking it shall promptly give notice to all other parties.
RULE 32. Use of Depositions in Court Proceedings.
32(a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Rules of Evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice, in accordance with any of the following provisions:
  (1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness or for any other purpose permitted by the Rules of Evidence.
  (2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director or managing agent, or a person designated under Rules 30(b)(4) or 31 (a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose.
  (3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; or (B) that the witness is outside the Navajo Nation, unless it appears that the absence of the witness was procured by the party offering the deposition; or (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (E) upon application and notice, that such exceptional circumstances exit in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.
  (4) If only part of a deposition is offered in evidence by a party, an adverse party may request introduction of other parts which ought in fairness be considered with the part introduced, and any party may introduce any other parts.

Substitution of parties pursuant to Rule 25 does not affect the right to use depositions previously taken; and, when an action has been brought in another jurisdiction and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken. A deposition previously taken may also be used as permitted by the Rules of Evidence.

32(b) Objection to Admissibility. Objection may be made at the trial or hearing to receiving in evidence any deposition or part of deposition for any reason which would require the exclusion of the evidence if the witness was then present and testifying.
32(c) Effect of Errors and Irregularities in Depositions.
  (1) As to notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.
  (2) As to disqualification of officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon. thereafter as the disqualification becomes known or could be discovered with reasonable diligence.
  (3) As to taking of deposition.
    (A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground for objection is one which might have been nullified or removed if presented at that time.
    (B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless timely objection is made at the taking of the deposition.
    (C) Objections to the form of written questions submitted under Rule 31 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within fIve (5) days after service of the last questions authorized.
  (4) As to Completion and Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31 are waived, unless a motion to suppress the deposition or of some part is made with reasonable promptness after the defect is, or with due diligence might have been, discovered.
RULE 33. Interrogatories To Parties.
33(a) Availability. 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 a is available to the party.
33(b) Procedures for Use. The use of written interrogatories shall be as follows:
  (1) Interrogatories may be submitted to any party at the time a claim for relief or responsive pleading is served upon that party or at any time thereafter, except that interrogatories shall not be submitted without leave of court less than sixty (60) days prior to the date set for trial.
  (2) Sufficient space for the answer shall be provided after each question. The party answering the interrogatories shall use the space provided for each question. If the answer requires more space, the answer shall continue on a separate sheet of paper.
  (3) The party submitting the interrogatories shall serve the original and one copy upon the answering party and shall serve one copy of the interrogatories upon every other party.
  (4) The party submitting the interrogatories shall file a Notice of Service of Interrogatories with the clerk of the court. The notice shall state that interrogatories have been served, identify the answering party, state the date of service, and state the names of all parties served with copies of the interrogatories. Copies of the Notice of Service shall be sent to all parties.
  (5) The answering party shall, within the time allowed under Rule 33(e), file with the clerk of the court the original interrogatories with answers and/or objections and serve a copy upon the party submitting the interrogatories and upon all other parties. The answers shall contain a certificate of service.
33(c) Objections. If any interrogatory is objected to, the reasons shall be stated in place of the answer.
33(d) Signing Interrogatories. The answered interrogatories shall contain a notarized statement of the party that the answers are true and complete to the best of the answering party's knowledge and belief. The objections, if any, shall be signed by the counsel representing the answering party.
33(e) Time for Answering. The party to whom interrogatories are submitted shall file the answers within thirty (30) days of service, unless a longer or shorter time is permitted by the court. The parties may stipulate to an extension of time for answering by filing the stipulation with the court.
33(f) Sanctions. The party submitting the interrogatories may move for an order under Rule 37 with respect to any objection to or other failure to answer an interrogatory.
33(g) Scope; Use at Trial. Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the extent permitted by the Rules of Evidence.

An interrogatory, otherwise proper, is not objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to a fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time.

33(h) Option to Produce Business Records. Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, including a compilation, abstract, or summary, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford the party serving the interrogatory reasonable opportunity to examine, audit, or inspect such records and to make copies, compilations, abstracts, and summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and identify the records from which the answer may be derived or ascertained.
NNSC Commentary: Business records are those records which a person or entity keeps as a written or computer-stored record of its transactions, agreements, daily activities, employees, etc. Business records may include records of inventory, records of sales, personnel files, time sheets, telephone logs, memoranda, contracts, etc. The definition is very broad. If it is not apparent on the face of the discovery request what documents are needed, the discovery request should be made as specific as possible. A request to produce or examine all business records may be subject to a protective order.
RULE 34. Production of Document and Things; Entry Upon Land for Inspection and Other Purposes.
34(a) Scope. Any party may serve on any other party a request:
  (1) to produce and permit the requesting party, or someone acting on his behalf, to inspect and copy any designated documents including writings, drawings, graphs, charts, photographs, phone records, and other data compilations from which information can be obtained or translated into reasonably usable form when translation is necessary; or
  (2) to inspect and copy, test, or sample any tangible thing which constitutes or contains matters within the scope of Rule 26(b), and which is in the possession, custody or control of the party upon whom the request is served; or
  (3) 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 operation, within the scope of Rule 26(b).
34(b) Procedure.
  (1) Leave of court is not required before service of a request under this Rule.
  (2) A request may be served upon the plaintiff after the, commencement of the action.
  (3) A request may be served upon any other party with or after service of the summons and complaint upon that party
  (4) The request shall list the items to be inspected with reasonable specificity.
  (5) The party upon whom the request is served shall serve a written response within thirty (JO) days after the service of the request except that a defendant may serve a response within forty-five (45) days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time
  (6) The response shall state, with respect to each item, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to a part of any item, the part shall be specified.
  (7) 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 request.
  (8) 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.
34(c) Persons not Parties. This Rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land.
RULE 35.  Physical and Mental Examination of Persons.
35(a) Order for Examination. When the mental or physical conditions (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his 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 shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
35(b) Report of Examining Physician
  (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 shall deliver to the requestor a copy of a detailed written report of the examining physician setting out his 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 shall be 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 an examination of a person not a party, the party shows that he is unable to obtain it. The court on motion may order a party to deliver a report to a requestor, and if a physician fails or refuses to make a report, the court may exclude his 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 he 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 to 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 examining physician or the taking of a deposition of the physician or the taking of a deposition of the physician under any other Rule.
35(c) Alternate Procedure: Notice of Examination; Objections.
  (1) When the parties agree that a mental or physical examination is appropriate but do not agree as to the examining physician, the party desiring the examination may seek it by giving reasonable notice in writing to every other party to the action. The notice shall specify the name of the examiner, the person to be examined, and the time, place and scope of the examination.
  (2) Upon motion by a party or by the person to be examined, and for good cause shown the court may, in addition to orders appropriate under Rule 35(a), order that the examination be made by a physician other than the one specified in the notice. If a party, after being served with a notice under this Rule, does not make a motion under this Rule and fails to appear for the examination or to produce for examination the person in his custody or legal control, the court may on motion order sanctions under Rule 37(d).
  (3) Rule 35(b) shall apply to an examination made under this subdivision.
RULE 36. Requests for Admission.
36(a) Requests for Admission. A party may serve upon any other party a written request for:
NNSC Commentary:  Requests for admission may be used to establish facts or genuineness of documents. They may not be used to establish applicable law, or the application of facts to applicable legal provisions.
  (1) The admission of the truth of a fact; or
  (2) Admission of the genuineness of any document.
36(b) Failure to Respond. The matter is admitted unless a written answer or objection signed by the answering party or his counsel is served upon the requesting party within thirty (30) days of the service of the request
NNSC Commentary: If a response is not made the matter will be treated as admitted and will not be required to be proven at trial.
36(c) Content of Responses.
  (1) The grounds for the objections must be stated.
  (2) Admissions shall be specifically stated.
  (3) Denials shall be specifically stated or the response shall set forth in detail why the answering party cannot truthfully admit or deny the matter.
  (4) Lack of information or lack of knowledge may not be given as a reason for the failure to admit or deny unless the answering party states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny.
  (5) That the fact which is the subject of the request for admission is in genuine dispute and to be litigated is not by itself a sufficient answer or objection.
36(d) Scope. Any admission made by a party under this Rule is for the pending action only and is not an admission for any other purpose nor may it be used against the party in other proceedings. Subject to Rule 16( e), the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.
36(e) Sufficiency. The party who has requested the admissions may move to determine the sufficiency of the answers or objections:
  (1) Unless the court determines that an objection is justified, it shall order that an answer be served.
  (2) 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.
36(f) Sanctions.
  (1) Rule 37(a)(4) applies to the award of expenses incurred in relation to a motion under Rule 36(e).
  (2) Rule 37(c) applies when the requesting party proves the truth of matters of genuineness of documents for which admissions were requested.
RULE 37. Failure To Make Discovery; Sanctions.
NNSC Commentary: Sanctions usually involves two steps. First, there is a motion to compel discovery. If the motion is granted and is not obeyed, the court may impose sanctions. Rule 37(d) provides for exceptions in which sanctions may be imposed for violation of discovery rules without a prior court order compelling discovery.
37(a) Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected, may move for an order compelling discovery as follows:
  (1) Appropriate Court. A motion for an order shall be made to the court where the action is pending.
  (2) Motion. If a deponent fails to answer a question propounded or submitted under Rules 30 or 31, or a corporation or other entity fails to make a designation under Rules 30(b)( 4) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, iI,1 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. When taking a deposition on oral examination, the proponent may complete or adjourn the examination before moving for an order.

If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26(c).

  (3) Evasive or Incomplete Answer. A vague, avoiding, or incomplete answer shall be treated as a failure to answer.
  (4) Award of Expenses of Motion. If the motion is granted, the court may, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or counsel advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

If the motion is denied, the court may, after opportunity for hearing, require the moving party or the counsel advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons.

37(b) Failure to Comply With Order.
  (1) Sanctions by Court Where Deposition is Taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court, the failure may be a contempt of court.
  (2) Sanctions by Court in Which Action is Pending.  If a party or an officer, director, or managing agent of a party, or person designated to testify on behalf of a party under Rules 30(b)(4) or 31(a), fails to obey an order to permit discovery, including an order under Rule 37(a) or Rule 35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
    (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established in accordance with the claim of the party obtaining the order;
    (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
    (C) An order striking out pleadings or parts of pleadings, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
    (D) In lieu of any of the foregoing orders or in addition to the orders, an order of contempt of court for the failure to obey any order except an order to submit to a physical or mental examination;
    (E) Where a party disobeys an order under Rule 35(a) requiring him to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party disobeying shows that he. is unable to produce such person for examination.
    In lieu of any of the foregoing orders or in addition thereto, the court shall require the party disobeying the order or the counsel advising or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses
37(c) Expenses on Failure to Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the party may move the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall so order unless it finds that (1) the request was held objectionable pursuant to Rule 36(c), or (2) the admission sought was not substantially important, or (3) the party failing to admit had reasonable grounds to believe that he might prevail on the matter, or (4) there was other good reason for the failure to admit.
37(d) Failure of Party to Attend Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection or Attend Mental or Physical Examinations. If a party or an officer, director, or managing agent of a party, or a person designated to testify on behalf of a party under Rules 30(b)( 4) or 31 (a) fails (1) to appear for deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or 3) to serve a written response to a request for inspection under Rule 34, after proper service of the request, or 4) fails to attend a physical or mental examination when required to do so under Rule 35(c), the court may make such orders in regard to the failure as are just, and it may act under paragraphs (A), (B), and (C) of Rule 37 (b)(2). In lieu of any order or in addition thereto, the court shall order the party failing to act or the counsel advising or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was justified or that other circumstances makes an award of expenses unjust.

The failure to act may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has moved for a protective order under Rule 26(c).


PART VI. TRIALS
 

RULE 38.  Jury Trial Demand.

38(a) Right Preserved. The right of trial by jury, as provided in the laws of the Navajo Nation, shall not be violated.
38(b) Demand. Any party may demand a trial by jury when allowed by law. A written demand must be served upon all other parties at any time after the commencement of the action, but not later than the date of notice setting the case for trial. The demand for trial by jury may be contained within the initial pleading. Thereafter jury trial demand must be by separate pleading.
38(c) Waiver. A failure to demand a jury trial constitutes a waiver of trial by jury. A demand for jury trial may not be withdrawn without the consent of all the parties.
38(d) Docket Entry. After trial by jury has been demanded, the action shall be designated upon the docket as a jury action.

RULE 39. Dismissal of Actions.

39(a) Voluntary Dismissal; By Plaintiff or By Stipulation or By Court Order; Effect.
  (1) An action maybe dismissed by the plaintiff without order of court by filing a notice of dismissal at anytime before service by the adverse party of an answer or of a motion for summary judgment, whichever occurs first, or by filing a. stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of any jurisdiction an action based on or including the same claim.
  (2) If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiffs notice of dismissal, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court.
39(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these Rules or any court order, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff, in a non-jury trial has completed his case, the defendant may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court may render judgment against the plaintiff or may decline to render judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this Rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.
39(c) Dismissal of Counterclaim, Cross­Claim, or Third-Party Claim. A voluntary dismissal of a counterclaim, cross-claim, or third­party claim shall be made before a responsive pleading is served or, if there is none, before the introduction of evidence at the trial or hearing.
39(d) Costs of Previously Dismissed Action. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may order the payment of costs of the. action previously dismissed as it may deem proper and it may stay the proceedings in the action until plaintiff has complied with the order.
RULE 40. Consolidation; Separate Trials; Postponements; Disqualification of Judge.
40(a) Consolidation. When there are pending actions involving a common question of law or fact, the court may order all the actions consolidated, and it may make orders to avoid unnecessary costs or delay.
40(b) Separate Trials. The court, for convenience or to avoid prejudice, or when separate trials will promote judicial economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross­claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury.
40(c) Postponement of Trial. After an action has been set for trial, no postponement of the trial shall be granted except on motion for good cause, supported by affidavit, or by consent of the parties, or by operation of law. The court may on its own motion postpone trial for good cause.
40(d) Motion for Postponement; Grounds; Effect of Admission of Truth of Affidavit by Adverse Party. If the ground for postponement is want of testimony, the moving party shall file an affidavit showing that the testimony is material, and that reasonable diligence has been used to procure the testimony, and that the testimony cannot be obtained with reasonable diligence from any other source. If the ground for the motion is the absence of a witness, the affidavit shall state the name and residence of the witness, and what the party expects to prove by him. The motion in either case shall show that the postponement is not merely for delay. If the adverse party admits or stipulates to the movant's assertions of the content of the missing testimony, then it will be considered as actually given at the trial, or if the judge determines that the evidence would be inadmiss[i]ble at trial pursuant to the Rules of Evidence the trial shall not be postponed.
40(e) Deposition of Witness or Party; Consent. The party obtaining a postponement shall, if requested by the adverse party, consent that the testimony of any witness or adverse party who will not be in attendance at the next scheduled trial be taken by deposition, without notice. The testimony so taken may be read at the trial by either party as if the witness were present.
40(f) Disqualification of a Judge.
  (1) Motion to Disqualify. A judge may be disqualified on the court's filing of an order disqualifying himself or on motion of a party. If a party files a motion for disqualification it must be supported by affidavit showing sufficient facts and grounds for disqualification.
  (2) When Filed. A motion by a party for disqualification shall be filed and served at least sixty (60) days prior to the trial date.
  (3) Disqualification is Discretionary. Disqualification shall be in the discretion of the judge and will be reviewed only for abuse of discretion. Upon receipt of the motion for disqualification, the judge shall grant or deny the motion on the basis of the motion and the affidavit.
  (4) Contents of Order. The order granting or denying the motion for disqualification shall state the particular grounds for disqualification or denial.
  (5) Another Judge. When a judge is disqualified, a copy of the order shall be sent by the court clerk to the Chief Justice who shall name another judge to hear the case.
40(g) Waiver. A party waives his right to request disqualification of a judge when the party participates before that judge in:
  (1) Any judicial proceeding which concerns the merits of the action or involves the consideration of evidence or of affidavits; or
  (2) A pretrial conference; or
  (3) The commencement of a trial.
RULE 41. Jurors; Jury Selection.
41(a) Trial Jury; Procedure; List; Striking; Oath.
  (1) When an action is called for trial by jury, the clerk shall prepare and deposit in a box, ballots containing the names of the jurors summoned who have appeared and have not been excused. The clerk shall then draw from the box at least six names, and in addition as many more as equal the number of peremptory challenges to which the parties are entitled. If the ballots are exhausted before the jury is completed, the court shall order additional drawings of as many qualified persons as necessary to complete the jury, but without notice and without the attendance of officers other than the clerk.
  (2) Alternatively, in any court where data processing equipment is used and random selection of trial jurors can be accomplished by such equipment, the court may direct a list of jurors to be printed, at random, by the use of such equipment and delivered to the court. The clerk shall then read the names of jurors in the order printed. If the number of names appearing on the printed form is exhausted before the jury selection is completed the court shall order additional jurors drawn in the same manner.
41(b) Voir Dire Oath; Examination of Jurors.
  (1) Prior to examination of jurors with respect to their qualifications, an oath or examination shall be administered in substance as follows:

"I do solemnly swear that I will truly answer all questions concerning my qualifications to serve as a juror in this case, so help me God."

  (2) The court may permit the parties or their counsel to examine the prospective jurors or the court may conduct the examination. In the latter event, the court shall allow the parties or their counsel to supplement the examination by further questions, or the court may ask the prospective jurors additional questions submitted by the parties or their counsel.
41(c) Grounds of Challenge for Cause. Challenges for cause in civil actions may be on one or more of the following grounds:
  (1) A person does not meet the qualifications required by law.
  (2) Standing in the relationship of guardian and ward, master and servant, employer and clerk, or principal and agent to either party, or being a member of a family of either party, or a partner in business with either party, or when a surety on a bond or obligation for either party.
  (3) Having served as a juror or having been a witness on a previous trial between the same parties in the same action.
  (4) Having formed or expressed an unqualified opinion or belief as to the merits of the action or showing such a state of mind as will preclude the juror from rendering a just verdict, but in the trial of any action the fact that a person called as a juror has formed an opinion or impression based upon rumor or newspaper statements about the truth of which he has expressed no opinion shall not disqualify him to serve as a juror in such action, if he, upon oath, states that he believes he can fairly and impartially render a verdict in accordance with the law and evidence, and the court is satisfied of the truth of such statement.
  (5) The existence of a state of mind evincing enmity or bias for or against either party.
  (6) Any other reason justifying dismissal for cause.
41(d) Extent of Examination; Trial of Challenge. The examination of the jurors concerning their qualifications to serve shall not be restricted to challenge for cause, but may include inquiry which might disclose a basis for exercise of a peremptory challenge. Challenges for cause shall be heard by the court. The juror challenged and any other material witness produced by the parties shall be examined on oath by the court and may be so examined by either party.
41(e) Manner of Challenging; Number of Peremptory Challenges.
  (1) After the selection of the jury pool is completed and all challenges for cause have been ruled upon, the clerk shall make a list and deliver it to the parties for peremptory challenges. The parties shall exercise their challenges by alternative strikes, beginning with the plaintiff, until the peremptory challenges are exhausted; Failure of a party to exercise a challenge in turn shall operate as a waiver of his remaining challenges, but shall not deprive the other party of his full number of challenges. The list shall then be delivered to the clerk who shall call the first six names remaining on the list who shall constitute the trial jury, and to whom an oath or affirmation shall be administered as follows: "I do solemnly swear that will well and truly try the issues now on trial and render a true verdict according to the law and evidence, so help me God."
  (2) Each side shall be entitled to no more than three peremptory challenges.
41(f) Alternate Jurors. The court may direct that not more than two jurors in addition to the regular jury be called and impaneled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. Each side is entitled to one (1) peremptory challenge in addition to those otherwise allowed by law if any alternative jurors are to be impaneled. The additional peremptory challenge may be used against an alternate juror only, and the other peremptory challenges allowed by law shall not be used against an alternate juror.
RULE 42. Order for Trial.
42(a) Order of Trial by Jury. Trial by jury shall proceed in the following order, unless the court for good cause stated in the record, otherwise directs:
  (1) Each plaintiff or his counsel may read the complaint to the jury and make a statement of the case.
  (2) Each defendant or his counsel may read the answer and may make a statement of the case to the jury, but he may defer making such statement until after the close of the plaintiffs' evidence.
  (3) Other parties to the action or their counsel may read their pleadings and may make a statement of their cases to the jury, but they may defer making such statement until after the close of the plaintiffs' and defendants' evidence.
  (4) The plaintiffs shall then introduce evidence.
  (5) The defendants shall then introduce evidence.
  (6) The other parties, if any, shall then introduce evidence in the order directed by the court.
  (7) The parties may then introduce rebutting evidence on each side in the respective orders set forth above.
42(b) Trial by the Court; Time for Decision.
  (1) Trial by the Court. If a jury trial is not demanded, the case shall be tried by the court.
  (2) Limitation of Time for Decision by Court. In an action tried by the court, the decision of the court shall be given within sixty (60) days after submission of the action. Where briefs are filed, the action shall not be deemed submitted until the time for filing the briefs has expired.
RULE 43. Witnesses; Evidence.
43(a) Definition of Witness. A witness is a person whose declaration under oath or affirmation is received as evidence for any purpose, whether such declaration is made on oral examination or by deposition or affidavit.
43(b) Affirmation in Lieu of Oath. Whenever under these Rules an oath is required to be taken, a solemn affirmation may be accepted.
43(c) Limitation on Examination of Witness; Exception. Only one counsel on each side shall conduct the examination of a witness until such examination is completed, except when the court grants permission for other counsel to conduct the examination. Interpretation in Navajo and English shall be flexible and freely allowed to do justice.
43(d) Form and Admissibility of Evidence. In all trials the testimony of witnesses shall be taken orally in open court unless otherwise provided by these Rules or the Rules of Evidence. Documents and objects offered in evidence, whether admitted or rejected, shall be marked as exhibits or for identification, and filed in the action.
43(e) Evidence on Motion. When a motion is based on facts not appearing of record, the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.
43(f) Omission of Testimony during Trial. The court may at any time before commencement of the argument, if necessary for justice, allow a party to supply an omission in the testimony upon such items and limitations as the court directs.
43(g) Preservation of Court Reporter's Notes of Court Proceedings.
  (1) The official stenographic notes or electronic recordings of any court proceeding are official records of the court. Such notes or recordings shall be kept by the reporter taking the notes or the clerk of the court in a place designated by the court. Unless the court specifies a different period for the retention of such notes or recordings, they shall be retained for a period often (10) years.
  (2) If the court reporter's notes or electronic recordings which have been delivered to the clerk of the court are to be transcribed, the court reporter who took the notes shall have first opportunity to make the transcription, unless the reporter is unavailable for any reason.
RULE 44.  Proof of Records; Determination of Foreign Law.
44(a) Records of Public Officials. The records required and kept by a public officer of the Navajo Nation, a state, county, municipality, or any body politic, and copies certified under the hand and seal of the public officer having custody of such records, shall be received in evidence as prima facie evidence of the facts stated.
44(b) Proof of Records of Notaries Public. Declarations and protests made and acknowledgments taken by notaries public, and certified copies of their records and official papers, shall be received in evidence as prima facie evidence of the facts stated.
44(c) Proof of Appointment of Executor. Administrator, or Guardian; Letters of Certificate. Whenever it is necessary to make proof of the appointment and qualification of an executor, administrator or guardian, the letters issued in the manner provided by law, or a certificate of the proper clerk under official seal that the letters issued, shall be sufficient evidence of the appointment and qualification of the executor, administrator or guardian.
44(d) Comparison of Handwriting. In any action, comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be made by any qualified witness, and such writings and the evidence of witnesses respecting them may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute.
44(e) Determination of Foreign Law. A party who intends to raise an issue concerning the law of a foreign jurisdiction shall give notice in his pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Rules of Evidence. The court's determination shall be treated as a ruling on a question of law.
RULE 45. Subpoena.
45(a) Subpoena for Attendance of Witnesses; Form; Issuance. Every subpoena shall be issued by the clerk under the seal of the court in the name of the Navajo Nation, shall state the name of the court and title of the action, and shall command each person to whom it is directed to attend and give testimony at a time and place specified. The clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service.
45(b) Subpoena for Production of Documentary Evidence. A subpoena may also command a person to produce the books, papers documents, or tangible things designated, but the court, upon motion at or before the time specified in the subpoena for compliance, may quash or modify the subpoena if it is unreasonable or oppressive, or condition denial of the motion upon the advance by the requestor of the subpoena of the reasonable costs of the production of the books, papers, documents, or tangible things.
45(c) Failure to Produce Documentary Evidence. Upon failure to comply with a subpoena under Rule 45(b), copies or other secondary evidence of the books, papers, documents or tangible things may be offered at the trial. Rule 37 sanctions may be applied in the discretion of the court for a failure to comply with this subdivision of this Rule.
45(d) Service of Subpoena. A subpoena may be served by the Navajo Police or by any person who is not a party and is not less than eighteen years of age. A subpoena shall be served by delivering a copy to the person.
45(e) Subpoena for Taking Depositions; Place of Examination.
  (1) Proof of service of a notice to take a deposition under Rules 30(b) and 31 (a) is a sufficient authorization for the issuance by the clerk of the court for the district in which the case is pending or in which the deposition is to be taken of subpoenas for the persons named or described. Proof of service may be made by filing with the clerk of the court for the district in which the case is pending or in which the deposition is to be taken a copy of the notice together with a statement of the date and manner of service and of the names of the persons served, certified by the person who made service. The subpoena may command the person to produce and permit inspection and copying of the designated books, papers, documents or tangible things which contain matters within the scope of the examination permitted by Rule 26(b), but in that event the subpoena will be subject to Rule 26(c) and Rule 45(b). The person to whom the subpoena is directed may, within ten (10) days after the service or on or before the return date, if the return date is less than 10 days after service, serve upon the counsel designated in the subpoena written objection to inspection or copying of any or all of the designated materials. If objection is made, the party serving the subpoena shall not inspect or copy the materials except by order of the court in which the action is pending or in which the deposition is to be or is being taken.

The party serving the subpoena may, if objection has been made, move upon notice to the deponent for an order at any time before or during the taking of the deposition.

  (2) A resident of the district in which the deposition is to be taken may be required to attend an examination only in the district wherein he resides or is employed or transacts business in person or at any place ordered by the court. A nonresident of the district may be required to attend only in the district where he is served with a subpoena, or at any place ordered by the court.
45(f) Subpoena for a Hearing or Trial. Subpoenas for attendance at a hearing or trial shall be issued by the clerk of the court in which the action is pending. A subpoena requiring the attendance of a witness at a hearing may be served at any place within the Navajo Nation.
45(g) Contempt. Failure of any person without adequate excuse to obey a subpoena may be deemed a contempt of the court from which the subpoena issued.
RULE 46. Exceptions Unnecessary.
  Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action the party desires the court to take or the party's objection to the action of the court and the grounds therefor; and if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not prejudice the party.
RULE 47. Motion for a Directed Verdict.
47(a) When made; Effect. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event the motion is not granted without having reserved the right to do so and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state specific grounds.
47(b) Motion for Judgment Notwithstanding the Verdict. Whenever a motion for a directed verdict made at the close of all the evidence is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than fifteen (15) days after the entry of judgment, a party who has moved for a directed verdict may file a motion to have the verdict and any judgment entered set aside, and have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned, such party, not later than 15 days after the jury has been discharged, may file a motion for judgment in accordance with his motion for a directed verdict.
RULE 48. Instructions to Jury; Objections; Arguments.
48(a) Instructions to Jury; Objections.  At the close of the evidence or at any time during the trial as the court directs, any party may file proposed written jury instructions. The court shall inform counsel of its decision upon the proposed instructions prior to their arguments to the jury, but the court shall instruct the jury after arguments are completed. No party may assign as error the giving or the failure to give an instruction, unless objection is made before the jury retires to consider its verdict, stating distinctly the instruction objected to or improperly omitted and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.
48(b) Instructions to Jury; Notations; Filing; Transcript.
  (1) The court shall either give or refuse the instruction as requested, or shall modify the instruction; indicating the modifications made and give it as modified. On the margin of each instruction requested, the court shall write the word "given" or "refused" or the words "given as modified," and his initials. The instructions which the court will give may be used in the arguments to the jury.
  (2) The written instructions shall be filed among the papers in the action and become a part of the record. At the request and cost of either party, the entire instructions given by the court shall be transcribed.
48(c) Arguments. The party having the burden of proof on the case shall be entitled to open and close the argument. Where there are several parties having several claims or defenses and represented by different counsel, the court shall direct the order of argument among them.
48(d) Interruption of Counsel During Argument. Interruption of counsel in argument will not be permitted, except for the purpose of raising a question of law. Interruption for commenting on facts not in evidence will be allowed. Interruption for misstatement of facts in evidence will not be allowed.
RULE 49. Verdict; Deliberations and Conduct of Jury.
49(a) Jury Deliberation. When the jurors retire to deliberate, they shall be kept together in a convenient place in the charge of a proper official. The court in its discretion may permit jurors to separate while not deliberating, or may require them to be isolated in the charge of a proper official whenever they leave the courtroom or place of deliberation. The court shall admonish them not to converse among themselves or with anyone else on any subject connected with the trial while not deliberating, or to permit themselves to be exposed to any accounts of the proceeding, or to view the place or places where the event involved in the action occurred, until they have completed their deliberations.
49(b) Admonition to Juror. If the jurors are permitted to separate during the trial, they shall be admonished by the court that it is their duty not to converse with or permit themselves to be addressed by any person on any subject connected with the case.
49(c) Communication to Court by Jury. When the jurors desire to communicate with the court during deliberations, they shall make their desire known to the official in charge who shall inform the court and they may be brought into the court, and through their foreman shall state to the court, either orally or in writing, what they desire to communicate.
49(d) Discharge of Jury; New Trial. The jurors may, after the action is submitted to them, be discharge by the court when they have been kept together for such time as to render it altogether improbable that they can agree, or when a calamity, sickness or accident may, in the opinion of the court, require it. When a jury has been discharged without having rendered a verdict the action may be tried again, or, when appropriate, the court may proceed in accordance with Rule 47(b).
49(e) Duty of Official in Charge of Jury. The official in charge of the jury shall not allow any communication to the jurors, or make any himself, except to ask them if they have agreed upon their verdict, or by order of the court. The jury shall not, before the verdict is rendered, communicate to any person the state of their deliberations or the verdict agreed upon.
RULE 50. Verdicts.
50(a) Majority Verdict. A verdict or a finding of a majority of the jurors shall be -taken as the verdict or finding of the jury.
50(b) Sealed Verdict. The court may direct the jury to return a sealed verdict at such time as the court directs
RULE 51. Special and General Verdicts and Interrogatories.
51(a) Return of Verdict. When the jurors unanimously agree upon a verdict, the verdict shall be signed by the foreman and returned into court. When the jurors do not unanimously agree upon a verdict, but four or more agree, the jurors who agree shall each sign the. verdict agreed upon, notify the court of that fact, and then the jury shall be returned into court and deliver to the court the verdict so signed. The court shall receive and cause the verdict to be read and recorded, and judgment shall be entered.
51(b) Proceedings on Return of Verdict; Polling Jury. When the jurors have agreed upon a verdict, they shall be conducted into court by the official in charge. The foreman shall read the verdict and the court shall inquire of the jury, or jurors agreeing, if it is their verdict, or either party may require the jury to be polled, which shall be done by the court asking each juror separately if the verdict returned is the juror's verdict. If any juror disagrees as to the verdict, the jury shall again retire to consider the case further, but if no juror disagree, the court shall receive the verdict and order it entered into the record, and the jury shall be discharged. Where a verdict is rendered by four or more jurors the verdict shall be received unless a juror signing the verdict disagrees with the verdict.
51(c) Defective or Nonresponsive Verdict. If the form of the verdict is defective, the court may direct it to be reformed at the bench, and where there has been a manifest miscalculation of interest, the court may direct a computation at the bench, and the verdict may, if the jury assents, be reformed in accordance with such computation. If the verdict is not responsive to the issue submitted to the jury, or if the jury does not assent with the computation a the bench, the court shall call the jury's attention, and send them back for further deliberation.
51(d) Special Form of Verdict Not Required. No special form of verdict is required. Where there has been a substantial compliance with the law in rendering a verdict, the judgment shall be rendered and entered notwithstanding a defect in the form of the verdict.
51(e) Special Verdicts and Interrogatories. The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence, or may use such other method of submitting the issues and requiring the written findings as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury. As to an issue omitted without such demand the court may make a finding, or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.
51(f) General Verdict Accompanied by Answer to Interrogatories. The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact, the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers agree, the court shall direct the entry of the appropriate judgment upon the verdict and answers. When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may direct the entry of judgment in accordance with the answers, notwithstanding the general verdict or may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, the court shall not direct the entry of judgment but may return the jury for further consideration of its answers and verdict or may order a new trial.
RULE 52. Findings of the Court.
52(a) Effect. In all actions tried without a jury, the court shall find in writing, the relevant facts and state separately its conclusions of law and enter the appropriate judgment. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court.
52(b) Amendment. Upon motion of a party filed not later than fifteen (15) days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly.
52(c) Submission on Agreed Statement of Facts. The parties to an action may submit the matter in controversy to the court upon an agreed statement of facts, signed by them -and filed with the clerk, and the court may render a decision and enter judgment accordingly. The agreed statement, approved by the court to be correct, and the judgment shall constitute the record of the action.
RULE 53. Masters.
53(a) Appointment and Compensation. The court in any action to be tried without a jury may appoint a special master. As used in these Rules the word "master" includes a referee, an auditor, and an examiner. The compensation to the master shall be fixed by the court, and shall be charged to the parties, or paid out of any fund or subject matter of the action, which is in the custody and control of the court as the court may direct. The master shall not retain his report as security for his compensation, but when the party ordered to pay the compensation allowed by the court does not pay it after notice and within the time prescribed by the court, the master is entitled to a writ of execution against the delinquent party.
53(b) Reference. An appointment of a master shall be made only upon a showing that special conditions require it.
53(c) Powers. The order of reference to the master may specify or limit the master's powers and may direct the master to report only upon particular issues or to perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the master's report.

Subject to the specifications and limitations stated in the order, the master has power to regulate all proceedings before the master and to perform as necessary to carry out the order of reference. The master may require the production of evidence upon all matters embraced in the reference, including the production of all applicable books, papers, vouchers, documents, and writings. The master may rule upon the admissibility of evidence unless otherwise directed by the order of reference. The master has power to put witnesses on oath and may examine them and may call the parties to the action and examine them upon oath. When a party so requests the master shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as a court sitting without a jury.

53(d) Proceedings. The clerk shall provide the master with a copy of the order of reference. Upon receipt of the order of reference, the master shall set a time and place for the first hearing to be held within twenty (20) days after the receipt of the order of reference and shall notify the parties or their counsel. Either party, on notice to all the parties and the master, may move the court for an order requiring the master to expedite the proceedings. If a party fails to appear at the time and place appointed, the master may proceed ex parte or, upon discretion, continue the proceedings to a future day, giving notice to the absent party.
53(e) Witnesses. The parties may subpoena witnesses before the master pursuant to Rule 45. If a witness fails to appear to give evidence, the witness may be held in contempt or, in the case of a witness who is a party, may be subject to sanctions pursuant to Rule 37.
53(f) Report; Contents; Filing. The master shall prepare a report upon the matters submitted by the order of reference. The report shall be filed with the clerk of the court and unless otherwise directed by the order of reference, shall file with it the tape or recording of the proceedings and of the evidence and original exhibits. The clerk shall mail to all parties notice of filing.
53(g) Acceptance of Report. The court shall accept the master's report for review and adopt it unless clearly erroneous. Within ten (10) days after being served with notice of the filing of the report, any party may serve written objections upon the other parties. Motions to the court for action upon the report and upon objections shall be in writing and upon notice as prescribed in Rule 6(c). The court, without hearing or after hearing, may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may remit it with instructions.
53(h) Stipulation as to Findings. The effect of a master's report is the same whether or not the parties have consented to the reference, but when the parties stipulate that a master's findings of fact shall be final, only questions of law arising from the report shall be considered by the court.
53(i) Draft Report. Before filing the report a master may submit a draft to counsel for all parties for their review and comments.


PART VII. JUDGMENTS
 

RULE 54. Judgments; Costs.
54(a) Judgment. Except for default judgments, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled. A default judgment shall not be different in kind or exceed the amount requested in the prayer for relief.
NNSC Commentary: Title 7 of the Navajo Nation Code sets forth the form and content of judgments which may be entered in civil cases.
54(b) Multiple Claims or Multiple Parties. During a lawsuit the court may enter judgments that dispose of fewer than all of the parties or claims. Unless specifically excepted by other rules or by caselaw these are not final judgments from which an appeal lies. Unless a stay is granted pursuant to Rule 62(e), such judgment can be enforced after entry.
54(c) Costs. In the judgment the court may order one or more of the parties to pay the costs. Costs include filing fees costs of service, jury, and witness costs.
NNSC Commentary: A settlement agreement should include provision for costs.
RULE 55. Default.
  If a party fails to answer or file a responsive pleading to a claim for relief within the time provided by these Rules, the court may enter default against that party.
NNSC Commentary: Default judgment is available when a party fails to file an answer or a responsive pleading to a claim for relief. This Rule requires a two step procedure in obtaining a default judgment: entry of default and judgment by default.
55(a) Motion and Entry of Default.
NNSC Commentary: Before a default judgment may be entered there must be an entry of default (a finding that the party has failed to file a responsive pleading to a claim for relief).
  (1) The party desiring a default judgment shall file a motion for an entry of default showing that the opposing party is in default and attaching proof of service of the claim for relief.
  (2) The moving party shall give notice of the motion for entry of default to the party claimed to be in default as follows:
    (A) If the whereabouts of the party is known, a copy of the motion shall be mailed to the party.
    (B) If the party claimed to be in default is known by the requesting party to be represented by counsel in the action, whether or not the counsel has entered an appearance, a copy of the motion shall be sent to the counsel and to the party claimed to be in default, if the whereabouts of the party is known.
    (C) If the whereabouts of a party claimed to be in default is unknown, the motion for entry of default shall so state. The court in its sole discretion may order that notice in some form be addressed to the party.
  (3) An entry of default shall not be made until ten (10) days after the filing and notification, if any, of the motion for entry of default.
  (4) A default shall not be entered if the party claimed to be In default pleads or otherwise defends as provided by these Rules prior to the expiration of ten (10) days from the filing and notification, if any, of the motion for entry of default.
55(b) Judgment by Default. Judgment by default may be entered after an entry of default has been. entered by the court as follows:
NNSC Commentary: This subsection sets forth the procedures for obtaining a judgment by default after an entry of default has been made. Counsel should take notice. of the evidentiary requirements for a judgment by default. Examples: (1) The issue of liability may be determined by default. Damages must be proven. (2) A decree terminating a marriage maybe entered by default. All other issues (custody, child support visitation, division of property, etc.) must be resolved through presentation of evidence.
  (1) By Motion. When the requesting party's claim is for a sum certain as contained in a bill, an account, a contract, or agreement, or fora sum which can be made certain by computation, the court upon motion and affidavit by the requesting party shall enter judgment for that amount and costs against the party in default
  (2) By Motion and Hearing. In all other cases default judgment shall be entered as follows:
    (A) The requesting party shall file a motion for default judgment with the court with notice to the party in default as provided in Rule 55(a).
    (B) The court may hear the motion and may take evidence to determine the amount of damages, to establish the truth of any facts upon which the relief is based, or to make an investigation of any matter necessary to the court's determination.
    (C) If a hearing is set, the clerk shall notify the parties of the hearing at least ten (10) days in advance of the hearing date.
    (D) The party in default may appear at the hearing and present evidence as to the amount of damages or the relief to be determined by the court. The party in default may not present evidence or attempt to respond to other allegations of the complaint or claims to which the party is in default.
55(c) Default Judgment against Minor or Incompetent Person. No default judgment shall be entered against a minor or incompetent person unless represented in the action by a guardian, or such other representative that the court finds appropriate.
55(d) Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(c).
55(e) Plaintiffs; Counterclaimants; Cross­Claimants. This Rule applies whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim.
NNSC Commentary: Even when service is made by publication, default judgment can be obtained only by the procedures set forth in Rule 55.
RULE 56. Summary Judgment.
56(a) For Claimant. A party seeking to recover upon a claim, counterclaim,. or cross-claim or to obtain a declaratory judgment may, at any time after the service of process upon the adverse party or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for summary judgment in the party's favor upon all or any part of a claim.
56(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for summary judgment in its favor as to all or any part of a claim.
56(c) Motion and Proceedings. Upon timely request by any party, the court shall set a time for hearing of the motion. If no request is made, the court may, in its discretion, set a time for such hearing. A party opposing the motion must file affidavits, memoranda or both, within fifteen (15) days after service of the motion. The moving party shall have five (5) days thereafter in which to serve reply memoranda and affidavits. The foregoing time periods may be shortened or enlarged by the court or by agreement of the parties; The judgment sought shall be rendered if the pleadings, deposition, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
56(d) Case Not Fully Adjudicated on Motion.  If on motion under this Rule, judgment is not entered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and proceed as is just.  Upon the trial of the action the facts so specified shall be deemed established and the trial shall be conducted accordingly.
56(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated. Sworn or certified copies of all papers or parts referred to in an affidavit shall be attached and served. The court may permit affidavits to be supplemented or opposed by depositions answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of his pleading; but the response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. Otherwise, summary judgment, if appropriate, shall be entered.
56(f) When Affidavits Are Unavailable. When it appears from the affidavits of a party opposing the motion that the party cannot for reasons stated, present by affidavit facts essential to justify an opposition, the court may refuse the motion for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make other orders.
56(g) Affidavits Made in Bad Faith. When any affidavits presented under this Rule are presented in bad faith or solely for the purpose of delay, the court shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party or counsel may be held in contempt.
RULE 57. Declaratory Judgments.
  The procedure for obtaining a declaratory judgment shall be in accordance with these Rules.  The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.  The court may order speedy hearing of an action for a declaratory judgment and may advance it on the calendar.
RULE 58. Entry of Judgment.
58(a) Entry. All judgments shall be in writing and signed by the judge who heard the case. The signing of the judgment constitutes entry of judgment. The clerk of the court must make every attempt to forward the judgment to the parties immediately after entry. The judgment is not effective before entry, except that for circumstances and on notice as justice may require, the court may enter a judgment nunc pro tunc, and the reasons shall be entered of record.
58(b) Objections to form.
  (1) In case of a judgment other than for money or costs, or that all relief be denied, the judgment shall not be settled, approved, and signed until the expiration of five (5) days after the proposed form has been served upon opposing counsel unless the opposing party or his counsel endorses on the judgment an approval as to form. The five-day provision may be waived by the court only upon an express written finding of the necessity to shorten the time or to enter judgment without notice.
  (2) If objection to the form of the judgment is made within the time provided in Rule 58(b)(I), the matter shall be presented to the court for determination.
  (3) This Rule shall not apply to parties 10 default.
RULE 59. New Trial.
59(a) Grounds. A verdict, decision, or judgment may be vacated and a new trial granted on the following grounds:
  (1) Irregularity in the proceedings of the court, referee, jury, or prevailing party, or any order or abuse of discretion, whereby the moving party was deprived of a fair trial.
  (2) Conduct of the jury or prevailing party that is prejudicial including, but not limited to threatening intimidation, or bribery of jurors, or witnesses.
  (3) Accident or surprise which could not have been prevented by ordinary prudence.
  (4) Material evidence, newly discovered, which with reasonable diligence could not have been discovered and produced at the trial.
  (5) Excessive or insufficient damages.
  (6) Error in the admission or rejection of evidence, error in the instructions to the jury, or in refusing instructions requested or other errors of law occurring at the trial or during the progress of the trial. Error will not be reviewed under this section unless objection was made at trial.
  (7) That the verdict is the result of sympathy or prejudice.
  (8) That the verdict, decision, findings of fact, or judgment is not justified by the evidence or is contrary to law.
59(b) Contents of Motion.
  (1) The motion shall be in writing and shall show specifically the grounds upon which it is based.
  (2) The motion shall state the specific facts circumstances, or law which support the grounds for the motion.
  (3) The motion shall show that the grounds materially affect the rights of the moving party.
  (4) If the motion is based upon affidavits they shall be filed and served with the motion.
  (5) With permission of the court, the motion may be amended at any time before it is ruled upon by the court.
59(c) Sufficiency of the Evidence. The court shall review the sufficiency of the evidence if the motion alleges that the verdict, decision, findings of fact, or judgment is contrary to the clear weight of the credible evidence.
59(d) Time.
  (1) A motion for new trial shall be filed and served not later than fifteen (15) days after entry of the judgment.
  (2) Service of Affidavits. When a motion for new trial is served with affidavits, the opposing party has ten (10) days after service to serve opposing affidavits, which period may be extended not to exceed a total of twenty (20) days either by the court for good cause shown or by the parties upon written stipulation. The court may permit reply affidavits.
59(e) Scope of New Trial.
  (1) Parties and Issues. A new trial may be granted to all or any of the parties and on all or part of the issues in an action in which there has been a trial by jury for any of the reasons for which new trials are authorized by these Rules. On a motion for a new trial in an action tried without a jury, the court may order a new trial or the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and enter a new judgment.
  (2) Questions. A new trial, if granted, shall be only a new trial of the questions with respect to which the verdict or decision is found erroneous, if separable. If a new trial is ordered because the damages are excessive or inadequate and granted solely for that reason, the verdict shall be set aside only in respect to the damages, and shall stand in all other respects.
59(f) Motion on Ground of Excessive or Inadequate Damages. When a motion for a new trial is made upon the ground that the damages awarded are either excessive or insufficient the court may grant the new trial conditional upon the filing within a fixed period of time of a statement by the party adversely affected by reduction or increase of damages accepting that amount of damages which the court shall designate. If such a statement is filed within the prescribed time, the motion for new trial shall be regarded as denied as of the date of such filing. If no statement is filed, the motion for new trial shall be regarded as granted as of the date of the expiration of the time period within which a statement could have been filed. No further written order shall be required to make an order granting or denying the new trial final
59(g) After Service by Publication. When judgment has been entered on service by publication, and the defendant has not appeared, a new trial may be granted upon motion of the defendant for good cause shown by affidavit, made within one year after the judgment is entered if the movant demonstrates that he did not receive actual notice of the proceeding in time to file a responsive pleading.
59(h) Number of New Trials. Not more than one new trial shall be granted to either party in the same action, except when the jury has been guilty of some misconduct.
59(i) Contents of Orders.
  (1) Granting New Trial. All orders granting new trials shall specify the grounds upon which the new trial is granted and shall state the scope of the new trial.
  (2) Denying New Trial. All orders denying a new trial shall state the basis for the denial.
RULE 59.1  Motion to Alter or Amend a Judgment.
  Within fifteen (15) days after the entry of judgment in a non-jury case an aggrieved party may file and serve a motion to alter or amend the judgment on the grounds that the findings of fact and conclusions of law are erroneous based upon the record (including sufficiency of the evidence) and the law. A motion to alter or amend shall be subject to the same requirements and procedures as a motion for a new trial.
RULE 60. Relief from Judgment or Order.
60(a) Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and similar errors arising from oversight or omission may be corrected by the court at any time on its own motion or on motion of any party and after notice, if the court orders. During pendency of an appeal, such mistakes may be corrected before the appealis docketed in the Navajo Nation Supreme Court, and thereafter while the appeal is pending, mistakes may be corrected with leave of the Supreme Court.
60(b) Correction of Error in Record of Judgment.
  (1) When a mistake in a judgment is corrected under Rule 60(a), thereafter the execution shall conform to the judgment as corrected.
  (2) Where there is a mistake, miscalculation or misrecital of a sum of money, or of a name, or of a census number and there is in the record a verdict or instrument of writing to which the judgment may be conformed, the court shall on motion and, after notice, correct the judgment accordingly.
60(c) Mistake; Inadvertence; Surprise; Excusable Neglect; Newly Discovered Evidence; Fraud; Etc. On motion and upon such terms as are just the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59; (3) fraud (whether denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged, or a prior judgment on which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the enforcement of the judgment.. The motion shall be filed within a reasonable time, and for reasons, (1), (2) and (3) not more than six months after the judgment or order was entered. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. This Rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding, or to grant relief to a defendant served by publication under Rule 59(g), or, upon motion, to set aside a judgment for fraud upon the court.
60(d) Reversed Judgment of Foreign Jurisdiction.  When a judgment has been entered upon the judgment of a foreign jurisdiction, and the foreign judgment is thereafter reversed or set aside by a. court of such jurisdiction, the Navajo court in which judgment was entered shall set aside, vacate and annul its judgment.
RULE 61. Harmless Error.
  No error in either the admission or the exclusion of evidence and no error or defect in any ruling, order, or in anything done or omitted by the court or by any of the parties is grounds for granting a new trial, or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action is inconsistent with justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which. does not affect the substantial rights of the parties.
RULE. 62. Stay of Proceedings to Enforce a Judgment.
62(a) Stay in Injunctions. Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. Rule 62( c) governs the suspending, modifying, restoring, or granting of an injunction during the pendency of an, appeal.
62(b) Stay on Motion for a New Trial or for Judgment or for Relief from Judgment. In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial or to alter or amend a judgment made pursuant to Rule 59.1, or of a motion for relief from a judgment or order made pursuant to Rule 60, or. of a motion for judgment in accordance with a motion for a directed verdict made pursuant to Rule 47, or of a motion for amendment to the findings or for additional findings made pursuant to Rule 52(b), or when justice so requires in other cases until such time as the court may fix
62(c) Injunction Pending Appeal. When an appeal is taken from a final judgment granting, dissolving, or denying an injunction, the court in its discretion, but subject to review by an appellate court, may suspend, modify; restore or grant an injunction during the pendency of the appeal upon such terms as are proper for the security of the rights of the adverse party.
62(d) Stay of Judgment Directing Execution of Instrument; Sale of Perishable Property and Disposition of Proceeds.
  (1) If the judgment or order appealed from directs the execution of a conveyance or other instrument, the execution of the judgment or order shall not be stayed by the appeal until the instrument is executed and deposited with the clerk of the district court to wait the decision of the Navajo Nation Supreme Court.
  (2) A judgment or order directing the sale of perishable property shall not be stayed; but the. proceeds of the sale shall be deposited with the clerk of the district court to wait theappea1.
62(e) Stay of Judgment Under Rule 54 (b). When a court has ordered a final judgment under the conditions stated in Rule 54(b), the court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefits to the party in whose favor the judgment is entered.
RULE 63. Reserved for Future Use.


PART VIII. SPECIAL PROCEEDINGS
 

RULE 64. Reserved for Future Use.
RULE 65. Injunctions.
65(a) Preliminary Injunctions. A preliminary injunction may be requested as part of a complaint for permanent injunction or other relief.
65(b) Notice of Hearing Required. No preliminary injunction shall be issued without notice to the adverse party and without hearing.
65(c) Hearing. At the hearing, regardless of the presence or absence of the adverse party, the moving party shall present evidence sufficient for the court to find all of the following:
  (1) That the moving party has or is claiming a protectable right or interest and has a high likelihood of success on the merits;
  (2) That irreparable injury, loss, or damage to that right or interest is likely to occur unless the preliminary injunction is issued;
  (3) That the threatened injury, loss or damage is substantial in nature or character; and
  (4) That the moving party does not have an adequate remedy at law.
65(d) Consolidation of Hearing with Trial on Merits. Before or after the commencement of the hearing of a petition for a preliminary injunction, the court may order trial on the merits to be advanced and consolidated with the hearing of the petition. Even when this consolidation is not ordered, any evidence received upon a petition for a preliminary injunction, which would be admissible upon the trial on the merits, becomes part of the record at trial and need not be repeated at trial. This subdivision shall be construed to save the parties any rights they may have to trial by jury.
65(e) Form and Scope of Injunction or Restraining Order. Every order granting an injunction and every restraining order shall set forth the following:
  (1) The persons bound by the order. Only parties to the action, their officers, agents, servants, employees and attorneys and those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise can be bound by the order. The order shall also set out the jurisdiction of the court over the person(s) enjoined or restrained.
  (2) The specific reasons for its issuance which shall include in reasonable detail the nature of the right or interest protected, the particular injury, loss, or damage which is threatened, and the lack of an adequate remedy at law;
  (3) A description in reasonable detail, and not by reference to the complaint or other document, of the act or acts to be restrained.
65(f) Dissolution of Preliminary Injunction Prior to Final Hearing Prohibited. The defendant in an injunction proceeding may answer as in other civil actions but the preliminary injunction shall not be dissolved before final hearing merely because of a denial of the material allegations of the complaint.
65(g) Motion to Dissolve or Modify. Motions to dissolve or modify a preliminary injunction without determining the merits of the action may be heard after an answer is filed, upon notice to the adverse party. If, upon hearing the motion, it appears that there is not sufficient grounds for the injunction, it shall be dissolved, or if it appears that the injunction is too broad, it shall be modified.
65(h) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the petitioner, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.
65(i) Writs of Injunction; Where Returnable. Writs of injunction granted to stay proceedings in an action, or to stay execution of a judgment, shall be returnable to and tried in the court where the action is pending or the judgment was entered.
65(j) Disobedience of Injunction as Contempt; Order to Show Cause; Warrant; Attachment; Punishable.
  (1) Disobedience of an injunction may be punished by the court as a contempt.
  (2) When a party in whose favor an injunction has been issued files an affidavit that the party or person against whom the injunction was issued is guilty of disobeying the injunction and describes the acts constituting disobedience, the court may rder the person charged to show cause why such disobedient party or person should not be held in contempt of court.
  (3) The order, with a copy of the affidavit, shall be served upon the person charged with the contempt within sufficient time to enable the person to prepare and respond to the order.
  (4) If such person fails or refuses to respond to the order to show cause, a warrant of arrest may issue directing the Navajo Police or other appropriate law enforcement to arrest and bring the alleged contemner before the court.  The contemner may give bail for his attendance at the trial and his submission to the final judgment of the court
  (5) If the alleged contemner is a corporation or any business association, an attachment for sequestration of the property of the corporation or business association may be issued upon refusal or failure to appear.
  (6) Upon the appearance of the alleged contemner, or at the trial of the issue; the court shall hear the evidence, and if the person enjoined has disobeyed the injunction he may be committed to jail until he purges himself of the contempt or until discharged by law.
65(k) Security; Proceedings Against Sureties. Whenever these Rules, including the Injunction Rule and any other relating to security, require or permit the giving of security by a party, and security is given in the farm of a band or stipulation or other undertaking with one or more sureties each surety submits to the jurisdiction of the court and irrevocably appoints the clerk of the court as its agent upon whom any papers affecting its liability on the band or undertaking may be served. A surety's liability may be enforced on motion without the necessity of an independent action. The motion and notice of the motion as the court directs may be served on the clerk of the court, who shall mail copies to the sureties if their addresses are known or reasonably ascertainable.
RULE 65.1 Temporary Restraining Order.
65.1(a) Temporary Restraining Order. A temporary restraining order may be issued to maintain the status quo until a hearing can be had upon the motion for preliminary injunction.
65.1(b) Notice. Subject to Rule 65.1(c), notice shall be given to the adverse party or the party's counsel stating that the movant will request the court to grant a temporary restraining order.
65.1(c) Without Notice. A temporary restraining order may be granted without written or oral notice to the adverse party or their counsel only if:
  (1) The affidavit filed with the motion for temporary restraining order states specific facts which convince the court that immediate and irreparable injury, loss, or damage will result to the moving party before the adverse party or the party's counsel can be heard in opposition.
  (2) The moving party's counsel certifies to the court in writing that efforts have been made to give notice and states the efforts made or claims to the satisfaction of the court why no efforts to notify the adverse party were attempted.
65.1(d) Procedure When No Notice. Every temporary restraining order granted without notice shall:
  (1) Be endorsed with the date and hour of issuance;
  (2) Be filed immediately with the clerk of the court and entered of record;
  (3) Specify the injury, loss, or damage and state why it is irreparable;
  (4) State why the order was granted without notice; and
  (5) State the date upon which the order will expire, which shall not exceed fifteen (15) days unless within the time allowed, the adverse party consents to an extension, or the court allows an extension for good cause.
65.1(e) Hearing on Preliminary Injunction. When a temporary restraining order is granted without notice, the motion for a preliminary injunction shall, be made within the effective time period of the temporary restraining order. At the hearing on the preliminary injunction the party who obtained the temporary restraining order shall demonstrate his right to a preliminary injunction. If he does not do so, the court shall dissolve the temporary restraining order.
65.1(f) Hearing to Dissolve Temporary Restraining Order. Unless the court shortens the time, on two (2) days' notice to the party who obtained the temporary restraining order without notice, the adverse party may move for its dissolution or modification. The court shall hear the motion for dissolution or modification.
RULE 66. Reserved for Future Use.
RULE 67. Deposit in Court.
67(a) By leave of court. In an action in which any part of the relief sought is a judgment for a sum of money or for the disposition of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing.
67(b) By Order of Court. When it is admitted by the pleading or examination of a party that he has possession of, or under his control money or other things capable of delivery which are the subject of litigation, and held by him as trustee for another party, or which belong or are due to another party, the court may order the money or things to be deposited in court or delivered to such party upon such conditions as may be just and subject to the further order of the court.
67(c) Custody; Duties of Clerk. When any money debt, instrument of writing, or other article is paid or deposited in court to wait the result of legal proceedings, the clerk shall seal the article in a package, and deposit it in a safe or bank, subject to the control of the court, and enter in the records of the action a statement showing each item of money or property received, and the disposition.
RULE 68. Execution.
  Process to enforce a judgment for the payment of money shall be by a writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be as provided by law. In aid of the judgment or execution, the judgment creditor or his successor in interest, when that interest appears of record, may obtain discovery from any person, including the judgment debtor, under these Rules or as provided by law.
RULE 69. Special Writ.
  When the judgment is for personal property, and it is shown by the pleadings and found that the property has a special value to the prevailing party, the court may issue a special writ for the seizure and delivery of the property and may, in addition to the other relief granted, enforce its judgment as provided by law.
RULE 70. Judgment for Specific Acts; Vesting Title.
  Enforcement of Specific Act. If a judgment directs a party to transfer an interest in land or to deliver other documents or to perform any other specific act, and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court, and the act when so done has like effect as if done by the party. On motion of the party entitled to performance, the court shall issue a writ of attachment or sequestration against the property of the disobedient party to compel obedience to the judgment. The court may also in proper cases hold the party in contempt.