AMENDMENT ENDS ‘THREE DAY RULE’
FOR ELECTRONIC DOCUMENTS
submitted to the court under Rule of Court
3.5. Rule 3.5 itself was amended to require
compliance with the filing guidelines in
Appendix K.
MIKE HAGBURG
Attorney at Law
The North Dakota Supreme Court has
approved amendments to the procedural rules
that will take effect March 1.
Attorneys should pay particular attention
to the amendments to Civil Procedure
Rule 6 on computing and extending time,
which will eliminate the “three day rule” for
documents filed and served electronically.
Similar amendments were made to Criminal
Procedure Rule 45 and Appellate Procedure
Rule 26.
Amendments were made to Civil Procedure
Rules 7 and 10 to align them with the
new Appendix K standards. The Rule 7
amendments eliminate language allowing
a motion to be stated as part of a notice
of motion, while the amendments to Rule
10 allow a document filed in conjunction
with a pleading to become part of the
pleading. These amendments are intended to
encourage the filing of separate documents
in the Odyssey electronic filing system rather
than as attachments to other documents.
Rule 3.5 was also amended to require
counsel to use the Attorney Subscription
Management System to receive notice of
documents filed by the court. The system was
developed by the court system’s information
technology department and allows attorneys
to subscribe to emails that notify them of
new events, such as the filing of a document,
in any district court case in which they are an
attorney of record.
Because courts do not generally use the
Odyssey File and Serve system when they
file documents, notice of filing is provided
in other ways, such as an email message to
the parties from the clerk. Once all attorneys
subscribe to the management system, however,
they will receive automatic notice of court
filings. The IT department has been making
continued improvements to the system, and
the automatic notice emails now include a link
that allows quick access to a webpage listing
all recent events in an attorney’s cases.
Other rule changes of note include
amendments to Civil Procedure Rule 11
that will change affidavit practice in court.
Under the amendments, notarization will no
longer generally be required for documents
filed in civil actions. Instead, the amendments
provide a method for parties to use unsworn
statements made under a penalty or perjury in
situations when affidavits are not specifically
required by law.
In addition to the rule amendments, the
Court adopted a new Rule of Court 8.3.1
to provide a procedure for case management
when unmarried parties with children are
seeking a determination of parental rights or a
change of residential responsibility. The Court
also adopted a new informational statement
form and a model scheduling order form to
supplement the rule.
Because attorneys are required to file and
serve most documents electronically, self-
represented parties and prisoners will be the
main court users who can continue to take
advantage of the three added days to act after
being served by mail or commercial carrier.
The Supreme Court recognized that
eliminating the “three day rule” might lead to
problems in some cases. The explanatory note
for the changes states “[e]lectronic service
after business hours, or just before or during a
weekend or holiday, may result in a practical
reduction in the time available to respond.
Extensions of time may be warranted to
prevent prejudice.”
In another rule change related to electronic
filing and service, a new Appendix K to the
Rules of Court was adopted to list filing
requirements for electronic documents
WINTER 2018
25