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Bar board considers time standards for email service

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Bar board considers time standards for email service

Saying they are concerned about manipulations by unscrupulous lawyers, the Bar Board of Governors has tabled consideration of rule amendments that remove an extra five days to respond to documents served by email.

The board, at its July 29 meeting, considered a variety of amendments to Civil Procedure Rules, as well as the Rules of Judicial Administration, and Appellate Court Rules relating to the service of documents.

The civil rules merely corrected references to the Rules of Judicial Administration dealing with service times, and the board recommended those be approved by the Supreme Court by a 41-1 vote.

But board members objected to two amendments to the Rules of Judicial Administration, 2.514 and 2.516, and one appellate rule, 9.420. The Rule 2.514 amendment removes email service from a subdivision that allowed five additional days for responding to service by regular U.S. mail. The Rule 2.516 amendment removed email from a section that said email service would be treated as service via U.S. mail for time computation purposes — which adds five days to those allowable times. Rule 9.420 specified that service by email in appellate matters be treated as service by U.S. mail for time computations and exempted appellate service from the time reductions in the RJA amendments.

Judson Cohen, vice chair of the RJA Committee, said the extra five days allowed for email service, which was passed a few years ago, was always intended to be temporary and to be eliminated as lawyers got used to switching from paper to electronic court documents. It was done, he said, because the shift from paper to electronic service was “mind-bending” and the committee wanted to give lawyers time to adjust. Giving them in essence an extra five days to respond to served documents was seen as a way to ease that transition.

Under the amendments, email service would be treated the same as electronic service through the court’s statewide e-filing portal, fax, or hand delivery, Cohen said.

Appellate Court Rules Committee Chair Kristen Norse said the appellate rule amendment exempted appellate rules from the RJA amendments because appellate practice is different from other practices, and the committee felt the extra time was needed.

Board members expressed two main concerns. One was that the time periods would be different in different rules. The second was the loss of the extra five days with email service might hurt practitioners if their opponents timed delivery for an inconvenient time, say 11:59 p.m. on a Friday night.

“I don’t care whether we add five or take away five days. Whichever way you go, you should be consistent,” President-elect Mike Higer said. “Here, we’re making it more difficult for our practitioners.”

Cohen said the RJAC discussed attorneys trying to game the rules by timing their service to inconvenience their opponents, but said in those cases lawyers always had the option of seeking relief from the court.

But board members said that might not always be practical.

“It’s great to say you can seek relief from the court, but frequently I can’t get a hearing in the time I need one,” said board member Bruce Robinson. “I don’t want to have two sets of standards. I want life simpler for our lawyers, not more complex.”

Other board members agreed, and the board eventually voted to table the three amendments to get more input, including from the Trial Lawyers Section.

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