TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 18, 2013
RE: Rule 3.5, N.D.R.Ct., Electronic Filing in the District Courts; Rule 5, N.D.R.Civ.P., Service and Filing of Pleadings and Other Papers
The committee discussed N.D.Sup.Ct.Admin.O. 16 on electronic filing at the September meeting and made several suggestions for amendment. The Supreme Court referred the committee's suggestions to the Court Technology Committee, which made further suggestions. The Court approved amendments to the order, and accepted the committee's proposal that the order be made a rule, and these amendments took effect January 15.
In discussing the amendments, the Court admitted that the rule was not yet perfect and made several suggestions for the committee to consider. In addition, Attorney Michael McIntee submitted a letter to the committee requesting amendments to the electronic filing rule. Attorney Rob Pagel later sent an e-mail suggesting that some e-service issues have not been resolved.
Mr. McIntee has proposed an amendment to address "ambush" service made late Friday or on a long weekend. He suggested that the rule be amended so that time would not begin to run for a response to a document served after 3 p.m. Friday until the following "regular business day." His letter is attached, and it will be referred to again in relation to the next two agenda items.
Proposed amendments to Rule 3.5 are also attached, but Mr. McIntee's proposed amendment is not included in the proposal because it is contrary to the "day is a day" principle the Court has adopted for counting time periods. A copy of N.D.R.Civ.P. 6 is attached to explain this principle. A Saturday, Sunday or holiday is not counted differently than any other day unless it is the last day of a period, in which case the next day that is not a Saturday, Sunday or holiday is considered the end of the period. In addition, an e-served document is treated as if it were mailed on the day it was served, with three days being added to any response period. This approach possibly negates any "ambush" aspect to a document e-served on a Friday.
In discussing Rule 3.5's time lines the Court agreed that some attorneys do seem to take advantage of weekends and holidays to inconvenience other attorneys. The committee may wish to discuss whether there are any ways to address Mr. McIntee's concerns that are consistent with the Court's existing time counting rules.
In discussing the rule at the September meeting, the committee raised two issues that the Court also considered significant when it addressed amendments to the rule. First, the Court approved the Technology Committee's proposal to require e-filing of the complaint after June 1. The Court recognizes, as the committee recognized in September, that e-filing the complaint is the first act in opening an electronic file in a case, but that there is currently no mechanism to let the other parties know this act has happened. The attached Rule 3.5 proposal contains an amendment which would require the party who e-files a complaint to give notice to other parties of this event. The committee may wish to discuss whether this is the best approach.
In addition, the Court also discussed the paragraph numbering requirement the committee addressed at the September meeting. The rule's paragraph numbering provision would seem to require all e-filed documents, even those used as exhibits or created long before the filing of a case, to be numbered. The attached Rule 3.5 proposal contains an amendment which would except certain documents from the e-filing requirement. The list of excepted documents needs to be exclusive, so the committee may wish to discuss whether the proposal goes far enough.
In his e-mail, Mr. Pagel told how he had run into some problems in court when he had filed
and served some documents via Odyssey. The opposing counsel received the Odyssey
service notice, but asserted that Mr. Pagel should also have e-mailed the documents and that
service through Odyssey alone was inadequate. The judge apparently agreed with this
position. Mr. Pagel suggests that Rule 5 be amended to make clear that service through
Odyssey under Rule 3.5 is adequate service. Proposed amendments to Rule 5 are attached.
The committee may wish to discuss whether any additional amendments should be made to
Rule 3.5 to clarify what constitutes adequate electronic service. It is possible that deletion
of the first sentence of Rule 3.5(e)(1), which will be superfluous after April 1, would resolve
any confusion about whether additional service steps need to be taken beyond service
through the Odyssey system.