Anne Huges, ACP, FCP, FRP

Ways for Paralegals to Avoid

Potential Headaches Induced by  

Email Service Rule Changes

By Anne Hughes

Do you remember back in July 2012 the rush to change the rules in Florida to require email service of documents on opposing counsel rather than sending by postal mail? Are you aware that since the ePortal became mandatory the Supreme Court has relaxed/amended those requirements to state that if the attorneys mutually agree to US postal mail service, they are now not required to use email service. In fact, the Board of Governors of the Florida Bar approved the proposal of amendments to the new email service rules by a vote of 28-0. After considering proposals from the legal community with regard to the Supreme Court decision SC11-399, amended rule 2.516, Fla. R. Jud. P. to now include:  

Subdivision (b)(1) (Service by Electronic Mail ("email")) and (b)(1)(B) (Exception to Email Service on Attorneys) are amended to allow parties to stipulate to methods of service other than email;

Subdivision (b)(1)(A) (Service on Attorneys) is amended to clarify that an attorney need not file a separate designation of email address; and

Subdivision (b)(1)(D) (Time of Service) is amended to clarify when email service is complete.

Besides whiplash, this rapid rule change and subsequent amendment poses two specific problems for paralegals. The first is uniformity in your office policy to maintain compliance. If some cases are allowed service of documents via US postal mail and others are not - because of the prerequisite of a mutual agreement between attorneys, this can lead to a lot of confusion in the office. Your best bet is to have a conversation with your attorney to set up ONE office policy and be compliant with that policy. Because of the rapid changes in the rules relating to electronic case filing, email service, the ePortal, etc, your attorney may not be aware of the Supreme Court updates or rule requirements. Have the conversation and ask him/her to set an office policy for you and your coworkers to follow.

The second problem specific to paralegals that is brought on by the change in rules and use of email for service of documents is proving your document was sent. Although Rule 2.516, Fla. R. Civ. P. states that service by email is complete when the mail is sent, the term "sent" is not specifically defined in the rule. From the sender's viewpoint, the clicking of "Send" will likely be thought of as the time when the Email is considered "sent ", and therefore, compliance is attained. However, depending upon the sender's computer system, clicking "Send" may or may not cause the e-mail to be transmitted to the internet for delivery to the recipient as some systems may include internal email "holds" that send all transmissions out in a batch or bundle or may require  internal processing before releasing the email to the internet for delivery to the recipient.  

Attorneys using delayed sending or email management features will be doing so at their own peril if the email feature results in the Email not being sent as anticipated. Further email complications to compliance with this rule is a potential conflict between the email rule which states that service is deemed completed when SENT vs the old "5 days for mail" rule and now that email service is NOT specifically mandatory in all settings, how does a paralegal prove compliant email service?  

There are pay services that provide registered email which is compliant with court rules, and claims to be admissible in court as not only proof that the email was sent, but proof that it was received. Everyone knows that a send receipt in Outlook is voluntary, at best, and can be avoided. Rpost, Blue Tie and Cisco Registered Envelope Service are pay services that offer registered email. Although I personally and CFPA specifically cannot assert any guarantee or statement regarding the quality of service either of these companies provide, it is noteworthy that registered email is actually available and can provide the sender with admissible evidence that opposing counsel was served, and received, court documents in compliance with the Rules. Unlike Outlook send receipts (to which the recipient can opt out of sending), registered email services provide not only a send/read receipt, but also provide the exact digital path the document took from your email address or location to the recipient email address or location. Another feature that is different from Outlook is that registered email also provides a digital version of the message that was sent - much like a fax transmission report will image the first page of a fax. These types of services typically offer the ability to notify the recipient that the email is being sent via registered mail - or not. The service is billed at a per user per month rate, based on the number of emails sent and user licenses held. Before subscribing to this or any other pay service, one should certainly perform due diligence and seek out what other services are available and which best fit your firms secure email needs.

The good news is that, as all paralegals are typically type A when it comes to organizational skills, being organized and consistent in how you manage your email service and follow up will serve you well. As controversies and complexities surrounding email service, efiling, eservice and the law continue to evolve, one should keep in mind that none of the issues raised by these changes have been resolved in court (yet) and the idea is to avoid being the test case. Be diligent by keeping current with the latest rules and requirements. If you choose to use a registered email service, educate yourself as to what services are out there, their cost, and what your firm needs are.

CFPA is co-chair of the Sub-Committee, Pathways in Law program for OCBA's 2014 Law Week and we are looking for some awesome volunteers to help our designated chair, John Starks, with this event!  Part of this event, will be helping with the following tasks:

• Coordinate speakers for this event
• Coordinate with Parramore Kidz Zone and Farmworker Ministry in transporting the children to the courthouse
• Coordinate either obtaining sponsors to provide pizza and drinks for kids' lunch
• Coordinate with the League of Women Voters for the Pathways In Law cake for the kids
• Coordinate with the Judicial Co-Chair in putting together a mock trial with the kids.
• Coordinate volunteers to help assist with the Pathways in Law program on the designated date which will be sometime during the week of March 24, 2014, spring break for Orange County Public Schools

If you're interested in representing CFPA on this OCBA Law Week Subcommittee, please email Pathways in Law Subcommittee Co-Chair, John Starks, at John.Starks@disney.com or 2014 OCBA Law Week Co-Chair, Nikki Rodeman at nikki@floridabusinesslaw.com.