TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Report on Commencement of Actions
Since September 2006, the Committee has been discussing possible changes to North Dakota's system of commencement of actions in civil matters. In April, the Committee completed work on drafting the basic rule amendments needed if the Supreme Court were to decide that a shift to commencement by filing was appropriate in North Dakota.
Copies of the commencement by filing rule amendments are attached for the Committee's review. One Committee member has proposed that further amendments to N.D.R.Civ.P. 4 be considered, and a memo on this proposal is also attached.
The Supreme Court has directed the Committee to prepare a report on commencement of actions. The rule amendments will make up the bulk of the report, and staff will also prepare a summary of the Committee's discussions on the topic. This summary will include a review of the rules the Committee considered for amendment but decided not to include.
Perhaps the most important part of the report, however, will be the Committee's recommendations on whether a shift to commencement by filing is appropriate for North Dakota. The Committee decided at its April meeting that it would formulate its recommendations at the this meeting.
In formulating its final recommendations, the Committee may wish to consider comments submitted by Clifton Rodenburg and Thomas Davies after the Committee's April meeting. Their comments are attached.
In his comment, Mr. Rodenburg suggested that the Committee needs to further discuss whether retaining commencement by service will create complications as North Dakota moves towards electronic filing. Mr. Rodenburg asks what complications there will be and whether they can be managed.
In discussions at previous meetings, the point was made that commencement by filing is the foundation of an efficient system of electronic filing and service. Under the system used by the U.S. District Court in North Dakota, for example, electronic documents are filed with the court and service of the documents is accomplished by e-mail sent by the District Court itself. The system starts operating when the action is commenced by the filing of the complaint.
The system used by the U.S. District Court eliminates problems related to paper documents lost in the mail or on lawyers' desks and also eliminates gamesmanship in filing and service -- the parties receive electronic service of all documents at the same time the documents are filed with the court. And if the parties somehow lose a document that was served electronically, they can access the electronically filed document (and view the updated case docket) through the U.S. District Court's PACER system.
North Dakota is currently working on building the electronic infrastructure for an up-to-date system of electronic filing in the state district courts. As was discussed at the April meeting, the legislature has appropriated more than a million dollars for the design of such a system. The U.S. District Court's experience has demonstrated the advantages of using electronic filing and court-based electronic service, including simultaneous filing and service and access to an electronic library of filed documents.
The advantages of electronic filing, however, cannot be obtained until the action is filed. If commencement by service is retained, the problems associated with the existing paper service system will continue to exist until the action enters the electronic realm when it is filed. In addition, a mechanism will have to be developed to add documents created prior to filing to the electronic case file. These are some of the complications related to the use of electronic filing in a system that retains commencement by service, and the Committee may wish to discuss these complications when addressing Mr. Rodenburg's concerns.