TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 5, 2015
RE: Rule 3.5, N.D.R.Ct., Electronic Filing in District Courts
Issues relating to Rule 3.5 and electronic filing continue to arise. Here are three:
1. In Desert Partners v. Benson, 2014 ND 192, held that Rule 3.5 was ambiguous because it does not specify how self-represented litigants, who are exempt from the Odyssey filing requirement, may file their documents. Consequently, based on its study of Rule 3.5's predecessor rules, it found that a document filed by fax by a self-represented litigant was a legitimate and timely filing. A copy of the opinion is attached.
Proposed amendments to Rule 3.5 clarifying how self-represented litigants may file documents with the court are attached. The proposed amendments would allow self-represented litigants to file paper documents in person, by mail or by third-party commercial carrier. The would further specify that a self-represented litigant wishing to file by electronic means must use the Odyssey system.
2. In Inwards v. N.D. Workforce Safety and Insurance, 2014 ND 163, the Court interpreted Rule 3.5's technical relief provision. A copy is attached.
Justice Kapsner requested that the committee look into the underlying situation in the case and discuss whether any amendments to the rule may be needed. In the case, WSI appealed an administrative determination and filed its notice of appeal using Odyssey. The other party, however, was not electronically served with the notice of appeal.
Staff queried IT to see whether what happened could be traced through Odyssey's electronic records. IT looked up the case and determined that the filing party had not requested electronic service, so the failure of service was not a system error.
Staff also brought the issue before the Odyssey User Group to see whether there was any pattern of problems with filing and serving administrative appeals through the system. Staff was advised that there were generally no problems, but that N.D.C.C. § 28-32-42, the administrative appeal statute, did require service on entities who might sometimes might not be subject to service through Odyssey. A proposed explanatory note advising about service in administrative appeals and a cross-reference to the statute and N.D.R.Civ.P. 4 and 5 is included in the attached draft.
3. At a different meeting of the Odyssey User Group, the problem of proposed orders was brought up. Apparently, it is sometimes difficult in Odyssey to determine which party submitted a proposed order. The User Group recommended that Rule 3.5 be amended to require the filer of a proposed order to identify the party who is submitting it in the Odyssey comments field. This propose amendment is included in the attached draft.