Bar News - January 18, 2013
A Closer Look at Proposed E-Service Rule
By: Joshua Gordon
Every lawyer knows that filing a pleading requires both delivery to the court and service on the other parties. Those who practice in federal court have become accustomed to the ECF system, which electronically takes care of both filing and service. Something similar will eventually come to New Hampshire, but delays caused by budget and practical difficulties mean courts will continue to require paper filing for at least a few more years.
That has not, however, stopped electronic service of pleadings on parties. Currently, there is a mishmash of standing orders issued by some courts, administrative regulations promulgated by some agencies, and informal practice among some lawyers, all allowing non-paper service of pleadings. Few of these, however, comprehensively address the issues raised by e-service, and it is expected those arrangements will be superseded if rules are adopted.
The Advisory Committee on Rules recently recommended to the NH Supreme Court an e-service rule for all New Hampshire courts. The text of the proposal, identical for all courts is: "In any case when all parties are represented by lawyers, all parties’ counsel may agree that pleadings filed and communications addressed to the court may be furnished to all other counsel by email. An agreement may be filed with the court by stipulation. Such agreement shall list the email address(es) at which counsel agrees to be served. The email header shall include the caption of the case and its docket number. Pleadings and communications furnished in accord with this rule shall be attached to the email in .PDF file format. Documents so furnished may have on their signature lines a copy of counsel’s signature, a facsimile thereof, ‘/s/ [counsel’s name]’ as used in the federal ECF system, or similar notation indicating the document was signed."
If adopted, the e-service rule will be integrated into Supreme Court Rule 26(3), Superior Court Rule 21, District Division Rule 1.3-A, Probate Division Rule 21, and Family Division Rule 1.23.
No Way, Pro Se
The proposed rule is explicit that it applies only to cases where all parties are represented by lawyers. If there is even one pro se or lay-represented party, the case is not eligible for e-service. If a formerly represented party becomes pro se during an existing case, the e-service agreement is void.
Advocates for pro se parties questioned this limitation. While some pro se people conduct themselves in a professional manner indistinguishable from lawyers, the Rules Committee felt that there is a presumption of regularity among attorneys not necessarily present among the self-represented – that is, lawyers are licensed and have a duty to keep the Bar Association apprised of changes in contact information. When an e-filing system is eventually established, this limitation can be dropped, as pro se parties will presumably be able to register in the system.
All or Nothing
There is no requirement to participate in e-service. Rather, it is an opt-in system. If an office is not equipped to handle e-service, or if a lawyer prefers not to, other than the wrath of one’s colleagues, there will be no consequences.
Because the Rules Committee did not want to cause anyone the confusion of e-serving some parties and paper-serving others, for the e-service rule to take effect, all parties must opt in.
Although ironically requiring an initial paper filing, e-service springs into effect upon the filing of an agreement among counsel. The agreement must specify the email address (or addresses) at which a lawyer expects to be e-served.
This has several practical effects. First, one cannot sue electronically – until there is an existing case and an e-service agreement, conventional service rules apply. Second, lawyers must maintain their email address for the duration of a case, or enter an amended agreement if it changes.
In addition, e-service should become a topic among lawyers at the beginning of all cases, and agreements should be consummated in structuring conferences or other early proceedings. Finally, most lawyers will have to alter their certificate-of-service pleading boilerplate to specify that service was made by email pursuant to the rule.
To avoid confusion and inconsistency, the e-service rule specifies how it must be implemented.
All e-served filings must be in the now-standard PDF file format. Filings must be attached to an email that contains in its "RE" subject line the caption of the case and its docket number. Although the rule does not specify, the body of the email should include the names of the documents served by it. Documents must be signed, but the rule is flexible about what that means. It allows a signature, a facsimile signature, an "/s/" followed by counsel’s name, like in the federal ECF system, or a "similar notation indicating the document was signed."
This flexibility will allow offices that are not yet paperless to scan and email to parties the printed and signed pleading that is being delivered to court. More technically advanced offices will be able to digitally sign in whatever manner is suitable, and thus skip the step of scanning.
Joshua Gordon practices appellate law in Concord, NH.