by J.D. McAlister, McAngus Goudelock & Courie, LLC
NORTH CAROLINA WELCOMES ELECTRONIC FILING VIA ODYSSEY WITH AMENDMENTS TO RULE 5 AND 5.1 OF THE GENERAL RULES OF PRACTICE FOR THE SUPERIOR AND DISTRICT COURTS.
On February 13, 2023, North Carolina Supreme Court executed an Order amending the existing Rule 5 and Rule 5.1 of the General Rules of Practice for the Superior and District Courts, pursuant to its authority under N.C. Gen. Stat. § 7A-34. The need for the Amendment arose from the upcoming implementation of the new electronic filing system rolling out statewide - Odyssey. Many of us have been anticipating implementation of the system for the past few years. Odyssey will eliminate mailing delays, promote the ability to access documents remotely or outside of regular business hours, and substantially reduce excessive (sometimes) amounts of paper traded between the parties and the Court. However, the conversion in practice and procedure practice with respect to filings will require some adjustment, and likely create some turmoil (at least in the initial stages).
Despite best efforts, the COVID-19 pandemic thwarted the initial plans for the implementation of Odyssey, delaying the roll out statewide. Comments to the Order Amending Rule 5 reference the original plan to launch Odyssey in July 2021 and to expend the system to all counties within a five (5) year timeframe. Obviously, that did not happen. However, the COVID-19 pandemic did force changes in practice that helped acclimate attorneys to electronic practice in many respects, helping blunt any sudden impact of the transition to Odyssey. The amendment of Rule 5 of the North Carolina Rules of Civil Procedure in late 2020 to permit service in most situations via e-mail is an example of one such change.
The North Carolina Judicial Branch coordinated sample programs over the past two (2) years, in order to identify and address issues that may arise prior to the full launch of Odyssey statewide. The system is now ready, and officially became interactive for four select counties as of February 2023: Harnett, Johnson, Lee, and Wake. The current plan is to expand Odyssey to the remaining counties by 2025.
The advent of Odyssey will now allow for electronic filing 24 hours a day; 7 days a week, and, 365 days a year; will permit service on all counsel of record, or parties, contemporaneously with filing; will enable access to documents and grant the ability to secure file stamped copies without a trip to the courthouse; and, expand the options to make necessary payments online.
The Court executed the Order following conference on February 1, 2023. The Order mandates an effective date of February 13, 2023. In the four counties in which Odyssey is now operational (Harnett, Johnson, Lee, and Wake) attorneys must file via the electronic system. An overview of the pertinent changes ushered in by the new amended Rule 5, includes the following non-exhaustive list of changes:
1) Every attorney will need to register individually for an account on the Odyssey system in order to use it;
2) As of February 13, 2023, attorneys in counties where the Odyssey system is active (Harnett, Lee, Johnson, and Wake) are now required to file all documents via the system.
3) In the event there is an issue with the Odyssey system (referenced in the Order as a service outage, natural disaster, or other emergency) the attorney may then file, in paper, a motion seeking relief to file the document in paper or seeking other relief. If pursuing this alternative option, the attorney must attach the document to the motion. It is not the intent of this provision to permit the court to extend time or periods of limitation; the Court may only provide relief as permitted by law.
4) Parties not represented by an attorney may secure an Odyssey account, and are encouraged to file using the system, but are not required to do so.
5) There is no longer a need for attorneys, in most instances, to physically sign documents. A “\s\” notation followed by the attorney’s electronically printed name is sufficient to indicate signature on the document. Attorneys may also include electronic signature lines for other counsel involved in the action, so long as the other counsel agree to the form and substance of the document. Any attorney filing a document bearing the electronic signature of another attorney certifies by filing that the other attorney(s) have agreed to the form and substance of the document, and provided authority to submit the document on his/her/their behalf.
6) The Court, absent exceptional circumstances, must sign and file its orders, judgments, decrees, and other documents via Odyssey.
7) For all electronically filed documents in Odyssey, the time of filing will be the time the electronic system receives the document – as evidenced on the face of the document. Previously, the timing of filing was the time at which the Clerk physically stamps the document. Upon filing, Odyssey will generate a Notification of Service that operates as an “automated certificate of service” in satisfaction of Rule 5(b1) of the North Carolina Rules of Civil Procedure.
8) Paper documents remain “filed” at the time the Clerk of Court, or a judicial official authorized by law to accept the document, file-stamps the document. Documents filed by the court generally follow the same timing component as paper documents, except that the file stamp is electronic.
9) A filer may withdraw a document after electronically submitted, up until the time the Clerk of Court or a judicial official authorized by law to accept the document begins processing it.
10) The Clerk of Court or a judicial official authorized by law to accept the document also has the ability to reject improperly filed documents. Such situations may include when a document filed violates an order (such as a Gatekeeper Order), statute, or rule; when the filer submits a rejection request; and/or, when the document submitted is corrupt or quarantined for containing a virus or malicious software.
As of now, the deadline for filing documents remains 5:00 PM on the date a filing is due. Any document received by the system after the 5:00 PM deadline is considered “late filed” – treated as if filed on the following business day. This remains consistent with the current General Rules of Practice for the Superior and District Courts and the North Carolina Rules of Civil Procedure.
The comments addressing the amendments note that additional changes may be required to as Odyssey is rolled out statewide. It is plausible to envision there may be an eventual amendment that will extend the deadline to file on a given day up until 11:59:59 PM, consistent with the Federal Rules of Practice and Civil Procedure. Other states implementing Odyssey have made such changes. Neighboring state Tennessee, which authorized electronic filing in civil trial courts in 2010, implemented a time and deadline change to allow “timely filings” any time up until 11:59:59 PM, after rolling out Odyssey as its electronic filing system. The only caveat being that such documents still must be eventually “accepted” by the Clerk of Court upon review to be considered timely.
Overall, once up to speed, use of the Odyssey electronic filing system should make practice and procedure more efficient, accessible, streamlined, and cost-effective, for both attorneys, judicial officers and personnel, and the public. The key to a successful transition will require embracing technology, adaptability, and a healthy dose of patience. With respect to the latter, it is imperative to recognize that our Clerks of Court, associated personnel, and other judicial officials are also in the midst of this transition – please be kind and patient as we all adapt to the implementation of Odyssey.
No matter your position on “going virtual” continued changes to the practice of law and procedure will be substantially influenced by advances in technology, and will continue to become our new reality.
Please take the time to familiarize yourself with these new changes, including training for use of the Odyssey electronic filing system. You may find the below links, which include instructions and tutorials, helpful in your effort to prepare for implementation of Odyssey in your county:
eCourts | North Carolina Judicial Branch
NC Courts YouTube Channel
