TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 3.1, N.D.R.Ct., Pleadings.
Judge David Nelson, chair of the Committee on Trial Court Operations, has submitted a request that the Committee discuss whether Rule 3.1 needs to be clarified. The issue, essentially, is whether a court clerk should file copies of pleadings or whether only original pleadings should be filed.
N.D.R.Ct. 2.2 explicitly allows a fax copy to be filed instead of an original. Rule 3.1 itself, as Judge Nelson notes in his letter, does not state specifically that an original must be filed, but it seems to suggest that a copy should only be filed when the original cannot be obtained, and then only when leave of court is obtained.
The court clerk manual says that filing the original is preferred, but it does not prohibit filing a copy. As the attached Clerk of Court Survey shows, the clerk practice varies across the state--some will never file copies, some will file copies with the expectation that they will later be replaced with originals.
Staff was unable to locate any helpful case law on the issue of whether an original must be filed.
For discussion purposes, staff has prepared a proposed amended version of Rule 3.1 that requires that an original document must be provided if filing is desired. This is the simplest option and is consistent with the existing language of subdivision (f) of the rule.