TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 16, 2016
RE: Rule 3.1, N.D.R.Ct., Pleadings
The Odyssey User Group recently reviewed Rule 3.1 as part of an effort to update how documents are handled within the Odyssey system. They developed a procedure for dealing with non-conforming documents that are stricken under Rule 3.1(j). Basically, they decided that the documents would be hidden from system users, but not destroyed or deleted.
In the process of this review, they asked staff what the legal effect of having a document "stricken" would be. This is explained in the rule text: its service is to be of no effect. They suggested that the committee consider whether this is appropriate and whether some safe harbor relief should be allowed.
Under Rule 3.1(j), ordering a document to be stricken is something that can be done at the discretion of the court and can only happen if a party refused to obey an order to reform a non-conforming document. Therefore, it is possible that the committee considered having "service to be of no effect" an appropriate remedy for a party's refusal to fix a document. On the other hand, Rule 3.5, copy attached, provides a safe harbor for documents that are rejected on initial filing and the committee may consider it appropriate to provide the same relief to parties who have documents stricken under Rule 3.1(j).
Proposed amendments to Rule 3.1 that would offer a safe harbor provision based on the provision in Rule 3.5 are attached.