TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 13, 2017
RE: Rule 3.5, N.D.R.Ct., Electronic Filing in the District Court; Rule 7, N.D.R.Civ.P., Pleadings Allowed--Form of Motions and Other Papers; Rule 10, N.D.R.Civ.P., Form of Pleadings
At its April meeting, the committee approved amendments to Rule 3.5 that had been proposed by the Court Technology Committee. The amendments were submitted to the Supreme Court as part of the committee's annual rules package on July 23. The Court put the package out for comment and received a lengthy comment on the Rule 3.5 proposal from attorney Ariston Johnson.
In the second paragraph of his letter, Mr. Johnson suggests that additional language be added to Rule 3.5 (c)(3) "providing clearly that clerks of court must accept proper documents, must reject improper documents, and must make the decision of whether a document is proper or not according to Appendix K and no other source."
Staff asked Court Administrator Sally Holewa whether such an amendment would be useful. She responded that it would be better to add language allowing clerks to reject documents for reasons not listed in Appendix K on a case-by-case basis, provided they immediately informed the person submitting the documents of the reason for rejection. The committee may wish to discuss whether Rule 3.5(c)(3) should be amended to add language reflecting Mr. Johnson's or Ms. Holewa's preferences.
In the third paragraph of his letter, Mr. Johnson states that the proposed amendment to Rule 3.5(e)(5) is confusing. He states that if filers and clerks correctly use Odyssey, there is no need for additional notices from the Attorney Subscription Management System. While Mr. Johnson is correct that notices are sent automatically when attorneys use the file and serve system to input items into Odyssey, there are no automatic notices sent when clerks or court staff directly file items using the Odyssey case management system. The main purpose of the proposed language requiring attorneys to use the subscription management system is to make certain they get notice when an item is filed in Odyssey by the court or court staff. Staff has drafted a proposed amendment to Rule 3.5(e)(5) to clarify that use of the subscription management system is required to obtain notice of court filings. The proposed amendment is highlighted.
Mr. Johnson suggests on page 2 of his letter that language in Rule 3.5(c)(3) requiring the filing of a separate document when resubmitting a rejected document is "rarely obeyed and never enforced." Staff has drafted a proposed amendment deleting this requirement. The proposed amendment is highlighted.
The rest of Mr. Johnson's letter relates primarily to the electronic filing requirements that are listed in proposed new Appendix K. The file and serve user group will be addressing Mr. Johnson's specific comments about filing requirements. The committee, however, may wish to discuss a larger issue touched on by Mr. Johnson in his comments on filing requirements: whether the rules should be harmonized to clearly require that individual documents be filed separately in Odyssey.
Appendix K (a)(3) requires exhibits to pleadings to be filed as separate documents. N.D.R.Civ.P. 10 allows attachments to pleadings. Staff has drafted a proposed amendment to Rule 10 that would delete the reference to attachments and refer instead to documents filed in conjunction with pleadings.
Appendix K (c)(1) requires individual documents to be filed separately but notes that N.D.R.Civ.P. 7 allows a motion to be made as part of a notice of motion. Staff has drafted a proposed amendment to Rule 7 that would delete this language.