TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 7, 2008
RE: Rule 5, N.D.R.Civ.P, Serving and Filing Pleadings and Other Papers
Attorney Mike Wagner has requested that the Committee considering amending Rule 5 to provide for service by e-mail. He writes that e-mail is now a commonplace, reliable and acceptable form of communication. A copy of his e-mail is attached.
The Committee considered amendments to Rule 5 at the October 2007 and January 2008 meetings in the context of unbundled legal services. The amendments the Committee approved are shown in paragraph (b)(1) of the attached rule draft.
Subdivision (a) of Rule 5 was amended effective March 1 to reflect the federal form and style updates. Therefore, staff has incorporated these updates in preparing draft amendments to subdivision (b) in response to Mr. Wagner's suggestions. Language providing for e-mail service can be found at subparagraph (b)(2)(F).
The e-mail service language does not follow the federal rule. Instead, it follows the language approved by the Supreme Court when it amended N.D.R.App.P. 25 effective March 1. The rule language merely allows electronic service, it provides no instructions. The explanatory note refers users to N.D.Sup.Ct.Admin. Order 16 for detailed service instructions.
A change reflecting the federal rule can be found in subparagraph (b)(2)(E). The language allows papers to be left with the clerk if the person's address is unknown. Current Rule 5 provides this option but only if there is a court order allowing it. The Committee may wish to consider whether the court order requirement needs to be retained.
An addition brought over from the federal rule can be found in subparagraph (b)(2)(G). This provision allows service to be made in any manner agreed to in writing. The Committee may wish to consider whether this provision should be added to the North Dakota rule.
The Rule 5 proposal is attached.