E-Mail Service for All Documents in Florida Cases
In the middle of the Florida Bar’s annual meeting, the Florida Supreme Court released an order requiring e-mail service of all documents in almost all Florida cases starting July 1, 2012. [Update: The Florida Supreme Court has entered a corrected opinion changing start date to September 1, 2012]. Nothing like giving us a little notice to put systems in place!
The June 21, 2012 order [available here in .pdf], basically deletes Florida Rule of Civil Procedure 1.080, and replaces it with a reference to new Florida Rule of Judicial Administration 2.516. The Court’s order explains:
e-mail service will be mandatory for attorneys practicing in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases, when the rule amendments take effect on July 1, 2012.
There are specific rules about how e-mail service must be labeled. The order explains:
e-mail service is made by attaching a copy of the document to be served in PDF format to an e-mail. The e-mail must contain the subject line ―SERVICE OF COURT DOCUMENT in all capital letters, followed by the case number of the relevant proceeding. The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the sender’s name and telephone number. The e-mail and attachments together may not exceed 5 megabytes in size; e-mails that exceed the size requirement must be divided into separate e-mails (no one of which may exceed 5 megabytes) and labeled sequentially in the subject line.
Notably, service by e-mail is treated as service by mail for purposes of calculating time, so everyone will be getting five extra days for service by e-mail added to their response times (under Rule 1.090 for civil cases, and Rule 9.420(e), which was not amended, under the Appellate rules). However, be aware of the following gotcha:
When, in addition to service by e-mail, the sender also utilizes another means of service provided for in subdivision (b)(2), any differing time limits and other provisions applicable to that other means of service control.
RULE 2.516(b)(1) (emphasis added). So, while you must send an e-mail either way, if the person serving the document faxes before 5 pm or hand delivers the document in addition to e-mail, the five “mailing” days disappear.
The New Rule of Judicial Administration also applies to appellate cases, and the Court amended Rule 9.420 to require service by e-mail of all documents except “initiating” documents, which must be filed by BOTH e-mail and U.S. Mail. The relevant new part of Rule 9.420(c) reads:
Service of every document filed in a proceeding governed by these rules (including any briefs, motions, notices, responses, petitions, and appendices) shall be made in conformity with the requirements of Florida Rule of Judicial Administration 2.516, except that the initial document filed in a proceeding governed by these rules (including any notice to invoke jurisdiction, notice of appeal, or petition for an original writ) shall be served both by e-mail pursuant to rule 2.516(b)(1) and in paper form pursuant to rule 2.516(b)(2).
All practitioners should set up e-mail filters accordingly. I suggest a rule that picks out “SERVICE OF COURT DOCUMENT” from e-mail subject lines and forwards them appropriately. Note, too, that you can designate up to three e-mail addresses for service.
This is but a prelude to the mandatory e-filing that is on tap for later this year, if the Court system can get its act together. The only way to get out of it, if you are an attorney, is to certify that you do not have an e-mail address and lack access to the Internet at your office. Not likely for most attorneys in this day and age. Welcome to the future, folks.
Update: In answer to a question in the comments, see my recent entry entitled Service on and by Pro Se Litigants.
Thanks for the informative article. One glaring question to me is if the rule requires e-mail service for “Every pleading subsequent to the initial pleading and every other document filed in the action . . .” (FRCP 1.080 & FRJA 2.516(a)), what do you do if the plaintiff wishes to serve documents (discovery/motions) with the initial pleading or wants to serve an amended pleading or documents prior to defense counsel’s answer? Wouldn’t those be considered “other documents” and “pleading[s] subsequent”? How do you serve those by email if you don’t yet know who the defense attorney is? Does 2.516(b)(1)(A) relieve you of the duty to serve by email until opposing counsel makes its first appearance?
In that case, you would serve it with the Complaint as was always done. My reading is as follows: Rule 2.516(b)(1)(C) says that when you need to make service on a party not represented by an attorney and who has not served a designation of an e-mail address for service, “service on and by that party must be by the means provided in subdivision (b)(2) of this rule”. Fla. R. Jud. Admin. 2.516(b)(2) says that service on a party not represented by an attorney and who has not served a pro se email designation “must be made by delivering a copy of the document or by mailing it to the party….” Delivery of a copy is still complete upon handing it to the party or in a conspicuous place in the party’s office or in the party’s usual place of abode with a person above 15 and informing the person of the contents. Fla. R. Jud. Admin. 2.516(b)(2). So the process server handing the discovery over with the complaint would, in my view, be proper service under this rule. You can’t know if the person is represented in the litigation at the time you serve them, even if they have representation for other matters.
Of course, read the rules and decide for yourself — this blog is not intended to give situation-specific legal advice, and should not be taken as such. But I would chase it down by reading 2.516 carefully.
Interesting enough I was in search of an explanation of what is this
document’s purpose “designation of e-mail address pursuant to 2.516” because I received it via postal mail not an email. After reading the article, and I thank you for the information being available for the consumer, however I don’t reside in Florida does that make a difference.
Thanks for this … I’m a law student and truly appreciate this summary.
An argument has arisen as to attachments to pleadings. Is it mandatory to email attachments or is it acceptable to email a pleading with notification that attachments to follow via regular mail?
Under this new rule, do pro se litigations have to file their motions via email to the adverse parties or is U.S. Mail still good enough? Or are they required to do both for each document?
That’s a great question, Olga. I am not yet aware of any case law on this issue. Rule 2.516 states that “unless the court otherwise orders…every pleading subsequent to the initial pleading and every other document filed in any court proceedings…must be served in according with this rule on each party.” See Fla. R. Jud. P. 2.516(a)(emphasis added). This language seems pretty clear to me, and in any event, the safest practice would be to serve every document by e-mail until an appellate court says otherwise, or you get an order from the court. If you have lengthy exhibits, you may need to break them up into several e-mails. When it comes to service of documents, it’s better to err on too much notice rather than too little.
Great question! I’ve answered it in today’s blog post, entitled Service on and By Pro Se Litigants. Good luck to you.