TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 25, N.D.R.App.P.; Filing and Service
Amendments to Rule 25 were considered at the Committee's April 2001 meeting. The Committee approved form and style changes to the rule and approved its inclusion in the appellate rules package.
The form and style changes approved by the Committee were derived from the 1998 amendments to F.R.App.P. 25. The Committee, however, apparently did not have the opportunity to consider adopting subparagraph (a)(2)(D) of the federal rule. This provision allows federal appellate courts to enact local rules permitting filing of papers by electronic means.
The federal appellate courts have not yet embraced electronic filing, although the U.S. Supreme Court temporarily accepted e-filed documents during the anthrax crisis. The 8th Circuit has an electronic filing rule, but the rule is limited to allowing the clerk to work with parties on a case by the case basis when a party seeks to file documents electronically. See 8th Cir. R. 25A (attached). State appellate courts, on the other hand, have been moving forward on opening the door to electronic filing and on formulating electronic filing rules. See Washington E-mail Filing Policy (attached); North Carolina Electronic Filing Instructions (attached).
Over the next biennium, North Dakota's courts will be putting technology in place to electronically store and record all filed documents. By requiring parties to provide electronic copies of all appellate briefs, the North Dakota Supreme Court has taken a step toward electronic filing. The Supreme Court has technology in place to begin accepting electronically filed documents. While the Supreme Court has not yet determined the specific rules for accepting electronically filed documents, there is a consensus that electronic filing should be allowed.
Proposed amendments to Rule 25 which would allow the Supreme Court to accept documents filed by electronic means are attached. The amendments are derived from F.R.App.P. 25 (a)(2)(D). The intent of the amendments is to formally open the door to electronic filing in the Supreme Court, while allowing the Supreme Court the freedom to formulate guidelines applicable to electronic filing internally, and to change those guidelines as necessary while working the kinks out of the system.
One example of an issue that needs to be worked out internally at the Supreme Court level is the filing of copies of appellate documents. Rules 27, 30, 31 and 32 require parties to file seven paper copies of documents that are filed with the Court. Obviously, this requirement has always created something of a burden for parties. In theory, the requirement could be eliminated once documents are filed electronically. However, for the foreseeable future, the Court will continue to need some paper copies of filed documents. If the requirement for parties to submit paper copies was eliminated, the Court would be required to bear the cost (in time and materials) of making copies internally. This would create a burden for the Court, especially since the Court does not have the ability to increase fees on its own in order to cover potential copying costs related to electronic filing.
Electronic filing is a complicated issue and uniform rules have not yet been formulated to govern it. The attached article on "Emerging Electronic Filing Court Rules and Standards" explains some of the issues that have been raised in connection with electronic filing rules. One of the issues discussed in the article is electronic service in conjunction with electronic filing. The amendments to Rule 25(b), as previously approved by the Committee, require copies of documents filed with the Supreme Court to be served on all parties, while Rule 25(c) specifies acceptable means of service. If the Committee accepts the electronic filing amendment (subparagraph (a)(2)(D)) the Committee may wish to discuss whether to allow electronic service under Rule 25(c).
The Supreme Court's desire is to integrate electronic filing into North Dakota practice without creating barriers to court access. A large scale amendment of the rules will be necessary once North Dakota's courts come up to speed on electronic filing. The Committee will recall that it needed to amend 22 rules recently just to allow for service of process by commercial carrier. In Georgia, a Georgia State University study determined that 248 Georgia rules and statutes would need to be "amended, clarified or emulated" before electronic filing could be fully implemented in Georgia's court system. See GSU E-Filing White Paper Summary (attached). The enormity of such a task is likely why some states that now are experimenting with electronic filing have created separate experimental rules applicable to electronic filing, rather than implementing wholesale changes. See Arizona St.S.Ct.R. 124.
The Committee may wish to discuss whether it wants to begin taking steps on a larger scale revision of the rules to address electronic filing in the North Dakota court system as a whole.