By Gary Blankenship
Senior Editor

Service of documents between attorneys will be accomplished by e-mail instead of regular mail under a rule change accepted in concept by a Bar rules committee.

Ft. Lauderdale attorney Paul Regensdorf presented the amendment to the Rules of Judicial Administration Committee January 21 at the Bar’s Midyear Meeting in Orlando. He said it was developed by a special committee comprised of a member from each of the 10 procedural rules committee.

“It’s going to become the standard. We’re not going to mail things any more,” Regensdorf said. “The day this goes into effect, we’re going to e-mail things.”

He added the rule is actually only a stepping stone as the Florida court system moves to electronic filing and electronic access to court records. Eventually service will be done through the electronic portal used for filing documents in the court, but the e-filing rule will transition to that time.

“We’re moving from the 18th century to the 20th century,” Regensdorf said. “The 21st century will be like the federal system with a portal. . . .This will be somewhat temporary because eventually there will be a portal that allows us to file a document and then the portal serves it. That’s not going to happen anytime soon. We cannot do that yet. We are years from that.”

He said there were two main impacts from the proposal. One is that the rule will be mandatory for attorneys. The only exception will be for lawyers without Internet access or e-mail service, who can ask a judge for permission to continue with paper service. The second impact is the main service rule will be in the Rules of Judicial Administration, rather than the current individual service rules for various practice areas. Regensdorf said those procedural rules may have slight modifications as required for their special circumstances, but the main rule should be in the RJA.

“There is no other state in America that has 10 or 11 sets of rules for all the other courts,” he said, noting Florida even has a separate set of rules for handling “Jimmy Ryce” cases on the civil incarceration of sex offenders.

He said the proposed rule is taken from the current civil rule, with modifications to allow for e-mail service to attorneys. Service to non-represented parties or attorneys without e-mail would remain as it is in the rule.

The committee voted 28-0, with no abstentions, to accept the proposed rule in concept. The vote allows the rule to be publicized and Bar members to comment on it. It also voted that the rule should be located within the Rules of Judicial Administration and be mandatory.

Regensdorf said he hopes the committee can consider comments and pass the rule when it meets again in June at the Bar’s Annual Convention. Then it would go to the Bar Board of Governors for its review (the board cannot change the rule, but makes recommendations to the Supreme Court) and be submitted to the Supreme Court before the end of the year.

He noted all the other procedural rules committees have been copied with the proposed new rule (RJA rule 2.516), and he hopes they also take action on it by June.

Regensdorf said the rule has some major advantages for lawyers. Doing service by e-mail will be considerably more efficient, he said, especially since lawyers will not have to print documents they already have in an electronic format. The rule also leaves unchanged time limits related to service. In effect, that means the five-day allowance for regular mail remains in effect for e-mail, giving lawyers who use it an extra five days to respond to motions or other filings.

Although generally supportive of the rule, committee members raised several questions. Those included how pro se litigants would be dealt with under the rule, what would happen if a lawyer’s computer broke down or Internet service was interrupted, the possibility of other technical glitches, and whether e-mail could handle extremely large documents needed in some cases.

Pro se litigants will have the option of designating an e-mail address for service delivery, Regensdorf said, and if they do not do that they will continue to be served by regular mail.

As for technical problems, such as service interruptions, “it was addressed by deleting all those things from previous drafts [of the rule],” he said.

The current rule does not address what happens if a document is lost, damaged, or delayed during regular mail delivery, Regensdorf said, instead leaving it to lawyers to creatively deal with those setbacks. Likewise, they will be expected to handle such problems as a computer breakdown or Internet service interruption.

“Be creative. If suddenly your Internet does go down and you need to serve a document, stick a stamp on it and drop it in the mail. There’s no penalty,” he said.

The rule sets a limit of five megabytes for electronically served documents, which he said should be sufficient for 98 percent of all cases, although he said that limit could be adjusted if the rule is approved by the committee. Larger documents could be sent in more than one e-mail. The rule specifies that documents must be in the PDF file format and that a single e-mail may not contain documents from more than one case.

One potential problem, he said, is lawyers and law firms could have spam and pornography filters on their e-mail accounts. A document in a case that includes, for example, a graphic sexual depiction might wind up blocked by such a filter, but Regensdorf said he thinks those issues can be addressed.

It’s also possible that some lawyers and law firms might not have the high-speed scanners necessary to convert some large paper documents into electronic files. But just as lawyers rely on commercial printers to print large documents, there are companies that can handle the scanning, he said.

The rule also would allow clerks to serve papers in a case via e-mail.

The rule requires that all service e-mails have a subject line that starts with the words “SERVICE OF COURT DOCUMENT” and then the relevant case number. It also requires a lawyer participating in the case to file a main e-mail address and up to two secondary addresses for service.

Regensdorf said he expects lawyers and law firms will set up a special e-mail address just to receive document service and a second address used to reduce the chances of documents getting lost or overlooked.

The next day at the Young Lawyers Division Government Symposium, which focused on e-filing, Regensdorf, who was a symposium panelist, expanded further on why the e-service rule would be good for lawyers.

“The number of pieces of paper filed and served in Florida . . . is somewhere north of 100 million papers a year. It could be 200 million a year,” he said. “That’s ink, toner, postage, and paper. This is just an incredible cost and waste that the lawyers have been doing too long.

“Many, many lawyers will not immediately go to an electronic system, and that’s fine. But the cost of maintaining a paper system will be shifted from my office — I don’t have to print things and spend money — to you if you want to print them.”

Virtually every rules committee reviewing the proposal at the Midyear Meeting accepted it in concept and agreed the main rule should reside in the Rules of Judical Administration. But some committees also had concerns or other recommendations, including asking whether the rule should have a phase-in period.

“These votes don’t mean that everyone signed on to every detail, but it shows a surprising degree of readiness on the part of lawyers to make a significant change in the way they practice law,” Regensdorf said.