TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 16, 2016
RE: Rule 41, N.D. Sup. Ct. Admin. R., Access to Court Records
The committee has discussed and approved amendments to Rule 41 at its last three meetings. The latest amendments are now before the Supreme Court as part of the Annual Rules Package.
At the May meeting, Judge McCullough suggested that a major overhaul for Rule 41 may be appropriate. In 2003-2004 a subcommittee of the Court Technology Committee took a comprehensive look at the rule and developed amendments to regulate electronic access to court records. After additional work by the Joint Procedure Committee, the Supreme Court approved these amendments July 1, 2006. Since that time the rule has been amended to address various issues but it has not been comprehensively reviewed to reflect the technological changes of the last 10 years such as the court system's adoption of the Odyssey system.
The Chair suggested as a first step toward a comprehensive review that the committee identify the problems it perceives in the rule and address them by proposing amendments. The committee noted two specific problems in the rule at the last meeting:
1. Records access at the courthouse currently is provided primarily through computer terminals that the public can use to access records stored in the Odyssey system. Rule 41, however, does not mention these terminals. Staff has prepared a proposed amendment to Rule 41that would acknowledge that the courthouse terminals are available to provide the public access to court records stored in the statewide Odyssey system.
2. One of the committee's May amendments to Rule 41, proposed by the State Court Administrator, used the term "secure public access." This term is not defined in Rule 41. The term was developed by the IT department to describe a type of remote access to the Odyssey system that is available to attorneys but not available to the general public. Therefore, use of the term "public" is not accurate. Staff has prepared proposed amendments that would eliminate the term "secure public access" and replace it with a description of the enhanced remote access to court records that attorneys may obtain.
These proposed amendments are intended as a starting point to address the deficiencies in the rule the committee has identified. The committee may identify additional problems with the rule in the course of its discussion: for example, it may be that much of Section 4(a) of the rule is superfluous if most public access to court records at the courthouse will be through the computer terminal rather than from a clerk pulling paper files.
Proposed amendments to Rule 41 are currently pending before the Court. If the committee decides that amendments to the rule are needed now, it may wish to send those proposals to the Court immediately along with any suggestions it might have on the need for a comprehensive review of the rule and how this might be accomplished.
On the other hand, the committee may wish to retain the rule and take the first steps toward a comprehensive review on its own. The committee recently worked on the collaborative law rule through two years of meetings.
Proposed amendments to Rule 41 are attached. The new proposed amendments are highlighted and underlined. The amendments the committee has already approved and sent to the Court are underlined.