ND SUPREME COURT JOINT PROCEDURE COMMITTEE REPORT
The Committee met at the State Capitol in Bismarck on October 11 and 12, 2007. The annual rules package was submitted to the ND Supreme Court on July 13, 2007. To date the Committee has received “no comments.” In anticipation of the hearing to be held before the ND Supreme Court at 2:45 pm on October 25, 2007, the Committee took one last look at that rules package. Civil Rule 3: The Committee has completed the report the ND Supreme Court requested on rules changes that would be necessary if Civil Rule 3 were amended to require the filing of a complaint to commence a civil action, as is the case in federal court and the majority of state courts; instead of requiring the service of a summons signed by an attorney or the plaintiff. The Committee’s report identifies the rules changes that would probably be necessary, but also recommended against making the change to Civil Rule 3. Consideration for the change is tied to the continuing development of computer technology. The ND Legislature appropriated more than one million dollars to build the electronic infrastructure to facilitate electronic filing. It is believed that the electronic infrastructure will provide an efficient system for filing and serving “paperwork” in the judicial system and would eliminate problems related to things like paper documents being lost in the mail. The move is towards a “paper on demand” system, (i.e., hit the “print” button on the computer for a paper document), as distinguished from “paperless courts.” However, the electronic document would be the “official” document. Levels of access distinguishing between, for example, a public access terminal and attorneys of record in a case, are also under consideration. (It was also reported that the social security administration is now joining bankruptcy courts and other federal courts in making the switch to electronic filing and service.) The switch in federal courts received a strong boost from security concerns over letter bombs and anthrax mailings. Other factors include greater interest in judicial case management, concerns that activities in court should be open to the public, and the efficiency and other advantages of electronic systems. Civil Rule 16 on pre-trial conferences, scheduling and management and Civil Rules 26, 33, 34 and 37 on “e-discovery,” as well as the finalized Uniform Rule 3 on “e-discovery,” were considered, but no additional changes to those already made in the rules package were recommended. Appellate Rule 10: The Committee recommended a further amendment to this Rule to delete an obsolete reference to 3.5” computer diskettes. Administrative Order 16: This is the electronic filing pilot project. The Secretary of State raised a question about the use of electronic notarizations. The Secretary of State interprets NDCC 4406-13 as requiring an “original” signature. However, the Secretary of State acknowledges that NDCC 9-16-10 allows for electronic notarizations. No North Dakota caselaw defining an “original” signature has been found. It appears that ND follows the general rule that a signature can take whatever form the person signing intends his or her signature to be. The Committee’s interpretation of the proposed amendment is that it does not require a notary to notarize a “nonorginal” signature; instead an “original” document is being notarized and electronically filed. The Committee is looking further into federal practice, but until this is finally resolved, it may be prudent to maintain paper copies of documents with notarized signatures for all notarized documents being filed electronically. Civil Rule 4: Consideration was given to deleting the provision allowing a court, in its discretion, to increase the time in which service must be accomplished and to either increase the 120-day
deadline for completing service to 180 days or reduce it to 90 days, but the Committee stuck with the original recommendation which requires effectuation of service within 120-days unless the Court, in its discretion, for good cause shown, extends that deadline. Consideration of this Rule and Civil Rule 3 also generated substantial discussion over whether or not the “commencement” of a civil action for statute of limitations purposes is a “procedural” matter defined by Civil Rule 3 or a “substantive” matter defined by NDCC 28-01-38. The th Committee reviewed a decision by the US Supreme Court, an 8 Circuit opinion that applied ND law and a decision by the Florida Supreme Court, all of which were of the opinion that this is a “substantive” matter for the Legislature to determine, i.e., the period of time in which an action may be timely brought and how that time will be determined is a “substantive” matter for the Legislature to determine. The Committee recommended against a reference in the Explanatory Notes that would have shown that NDCC 28-01-38 was “superseded” by Civil Rule 3 in favor of a reference showing that NDCC 28-01-38 was “considered” and voted to recommend the addition of a sentence to Civil Rule 3 to indicate that the Rule does not affect NDCC 28-01-38 for purposes of determining if an action has been “commenced” so as to toll the statute of limitations. (This particular issue may generate further discussion at the 10/25/07 hearing on the rules package.) Civil Rules 5 (service and filing of pleadings and other papers); 12 (defenses and objections) and 31 (depositions on written questions), as well as Court Rule 8.3 (case management – divorce cases) were also considered but no changes were made to what is already in the rules package. (New) Criminal Rule 32.2: The Committee is recommending adoption of a new rule that may be used for “pretrial diversion” agreements between prosecutors and criminal defendants. Civil Rule 5 (b), Civil Rule 11(e), Court Rule 11.2 (d) and ND R. Prof. Conduct 1.2(c): The ND Supreme Court, acting on a report about Pro Se Litigation, asked the Committee to consider rules changes to facilitate unbundled legal services. This would allow an attorney to make a limited appearance on a pro se litigant’s behalf for purposes of providing limited representation on a specific matter at issue in the case. ND R Prof. Conduct 1.2(c) allows an attorney to limit his or her representation of a client – with the client’s consent after consultation. The proposed rules under consideration would continue to provide that only the pro se litigant be served with papers in the case and then facilitate an appearance by an attorney for limited representation of the pro se litigant. Input has been provided by the Joint Committee on Attorney Standards and Maine’s rules are being used as a model. The Committee will be looking further at this proposal at the next meeting before making its recommendation. Appendix A (Criminal Form 9): At the next meeting, the Committee will be looking at making stylistic changes to this form, as well as adding (1) a condition that would prohibit the person from leaving the state without permission; (2) a waiver of the condition absolutely prohibiting firearms as now permitted by NDCC 12.1-32-07(3) which went into effect 8/1/07; and (3) a substitution of blanks for dollar amounts that change from time to time. Civil Rule 5.1, Criminal Rule 49.1, Appellate Rule 25 and Court Rule 3.1: At the next meeting the Committee will be considering further changes to these rules, (probably combining all of them into a single Court Rule) to protect additional private information that is being filed in court. This consideration was triggered by federal amendments that now protect birth dates and minor’s names. Accordingly, in addition to requiring parties and their attorneys to redact social security numbers and financial account numbers from documents being filed in Court, or filing such information separately under seal, the Committee will be considering the protection of additional information by, for example, substituting birth years for birth dates, initials for minor’s names and city and state addresses for full street addresses. The Court Technology Committee is addressing concerns about public access and how to confirm a person’s identity through birth dates and street addresses, i.e., the public will be able to confirm the identity but the private
information will not be publicized. Consideration will also be given to the use of unique identifiers or reference lists. Civil Rule 27: The Committee rejected a request to expand the use of pre-suit depositions “to investigate a potential claim or suit.” Consideration of a possible amendment to this rule to accomplish that purpose was triggered by an article written by Law Professor Lonny Hoffman of the University of Houston. Previously, in Harmon v. Mercy Hosp., 460 N.W.2d 404 (ND 1990), the ND Supreme Court adopted the “narrow” federal interpretation of this rule, holding that Civil Rule 27 cannot be used to obtain facts on which to base a complaint without a “showing of substantial danger of loss of the evidence.” The Committee recommends no change to the rule. This was Justice Sandstrom’s last meeting as Chair, due to term limits. As yet, the Committee does not know who will chair the next meeting.