By Gary Blankenship
Around 11 a.m. on June 21, the Florida Supreme Court released a procedural rules opinion setting deadlines by which attorneys are required to use email to serve documents. A few hours later, the Rules of Judicial Administration Committee voted to file an emergency petition with the court to update the rule.
Welcome to the fast-changing world of electronic courts.
The court, in case no. 10-2101, set time limits for switching from mail to email for exchanging documents and accomplishing service. That’s part of the transition by the courts to an electronic court system where filing and access will be largely electronic. (The court on the same day released an opinion in case no. 11-399, which set deadlines for requiring electronic filing of documents with the court through a developing statewide Internet portal.)
The changes proposed by the committee as part of Rule of Judicial Administration 2.516 address the next step in electronic service, when the portal will take over document service from lawyers. Committee member Paul Regensdorf, who headed the subcommittee that developed the amendments, said the plan had been to submit them to the court for consideration as part of case no. 10-2101. But since the Supreme Court acted, he said the subcommittee was suggesting they be submitted as an emergency rule change.
The amendment addresses the differences between email service and e-service, Regensdorf said.
Email service, he explained, is what the court has now ordered in case no. 10-2101 and sets deadlines for lawyers to electronically exchange documents instead of mailing them. But that is only temporary, as the system will eventually evolve to e-service, where the portal will handle those service duties.
“Right now when you e-file a document with the portal, there is no component in that system to serve it on anybody,” Regensdorf said. But, he added, that is being worked on and the committee’s amendment will have a rule in place when court clerks are ready to add that to the portal and the Supreme Court approves that upgrade.
He noted that will be the same as in federal courts, where service is done electronically by the e-filing system.
“We want to get an e-service system and rule in place as quickly as possible so we can get the full benefit of the electronic world that we’re going to be living in,” Regensdorf said. With e-service, “I file a document, I upload it to the portal, the portal immediately recognizes it as a filed document, they file it and they serve it on all of the attorneys who have been identified as . . . attorneys in the case.”
The proposed amendment, he said, takes the requirements and time computations for paper mailing and email service in Rule 2.516 and applies them to e-service.
For example, Regensdorf said the rule specifies that paper service is complete when a document is mailed, and email service is complete when the document is transmitted. The amendment specifies that e-service is completed when the document is electronically filed through the portal.
The rule also specifies that if the sending attorney learns that the recipient attorney did not receive the mailed or emailed documents, then the sending attorney must serve the documents another way. That, he said, is carried over for e-service through the portal.
“It’s precisely what you have in the paper world today. If I learn a paper copy doesn’t get to an opponent, I have to serve it another way,” Regensdorf said, adding the federal system also has the same stipulation.
Time computations, he said, will be exactly the same as with paper and email service, both of which allow five days for transmittal even through email and e-service are basically instantaneous.
“This is a temporary sort of situation,” Regensdorf said. “The federal court went this way for a while and then they eventually redid all of their service times. And, eventually, once we get a [e-service] system that is up and running in every court, we will probably redo in this committee all of the service times. For now, so that we change as few things as possible, we kept this exactly like [paper] mail.”
That’s a boon for lawyers, who get an extra five days for documents that require a response, he said.
Lawyers who want to eliminate the five-day delivery allowance for mailed documents can hand-deliver or fax documents under the current rule, and that provision is carried over in the email service rule and is proposed for the e-service rule, he said.
The amendment provides that “if a document is being served by more than one method, the time computation is by the method that allows the shortest response time,” Regensdorf said.
After discussion, the committee, which was meeting during the Bar Annual Convention in Orlando, voted 22-3 to submit the changes as emergency amendments to the Supreme Court.