Courts Are Moving To E-Service, Where Does This Leave You?

As Published in The Recorder, October 20, 2014

by Jack Trott, Esq., File & ServeXpress

Jack Trott File & ServeXpress
Jack Trott
File & ServeXpress

Although technology is revolutionizing the legal profession, law firms are known to be late adapters when it comes to deviating from their long tenured and often outdated legal tools and firm systems. Ironically, attorneys quick to embrace the “latest and greatest” technology for personal use are often slow to do the same for their firms’ day-to-day operations.

In particular, technology is playing an ever increasing role in the discovery process i.e. e-discovery.  In addition to streamlining the discovery process for many firms, technology has not only enabled online document storage but also transformed the service process. At one time, physical documents had to be manually delivered. Later, many firms began to serve documents via email. Many still do.

Law firms that use industry-specific technology advances can experience advantages such as:

  • Time savings
  • Cost reduction
  • Risk mitigation

Despite what attorneys often think, e-mail should not be used for service. Email is not secure, not suitable for document storage and does not allow senders to receive service verification.

On the other hand, e-Service offers increased capabilities for both document delivery and e-Discovery. Unlike email, e-Service is specifically designed to accommodate the large documents and enormous volumes of data present in pleadings, motions, discovery and other legal proceedings.

E-Service, which is conducted via a secure, password-protected online platform, provides verifiable proof of service. It offers firms many advantages including time savings and cost reductions while enabling them to serve production sets in a secure, timely manner.

With e-Service you can mitigate your risk of failing to comply with service requirements.  Keep in mind, couriers can make late deliveries and disks can be lost, and email is unpredictable. Both of these possibilities pose major risks to attorneys and clients. E-Service eliminates these concerns.

Who Uses E-Service?

E-Service is already mandated by the San Francisco Superior Court for asbestos, probate and complex civil cases, as well as for any case where e-Filing is used. Under Rule 2.10(P)(1) of the San Francisco Uniform Local Rules of Court, “Users must e-Serve all e-Filed documents on all parties”. This is part of the Court’s Electronic Information Management (EIM) project.

According to the Court, “The project, which began in March 2013, is aligned to the Court’s strategic plan and aims to use technology to improve service to the public, save money and reduce paper use”.

E-Service is not limited to service of documents that are filed with the Court. Parties can and should use e-Service as a tool to serve discovery documents. San Francisco County, Los Angeles County, San Diego County, and other California Courts already require e-Service for complex case discovery. Los Angeles County also e-Serves Court Notices and Orders to parties. Solano County Superior Court is preparing to mandate e-Service for discovery in complex cases. In an effort to deal with persistent budget constraints, other courts are likely to follow suit.

Everyone involved in e-Discovery should be familiar with the “Meet and Confer” requirements of Rule 26(f) of the Federal Rules of Civil Procedure, where parties are required to develop a proposed discovery plan. Courts at all levels are saying they want cooperation between parties, particularly as it relates to discovery. A “Meet and Confer” is the perfect time to address and agree to e-Service. Opposing parties can easily agree upon it as a first step towards a cooperative approach to discovery.

Attorneys reading this may think “How does this impact me? My staff handles all of my discovery and service needs. I just need to know that it’s done properly and on time”. E-Service offers attorneys a number of advantages over traditional discovery and service methods:

  • Reduced costs for clients.
  • Time savings and reduced workload for support personnel.
  • A secure, searchable database for discovery documents.
  • Burning to disk, shipping large numbers of disks, storing disks, finding disks, losing disks and researching disks will be a thing of the past.
  • Simple setup.
  • Attorneys are responsible for production sets served late or lost, under the California Rules of Professional Conduct.

Courts are embracing e-Filing and e-Service, however, despite the advantages of e-Service, many attorneys have been slow to adopt it. Those that do, however, typically find e-Service to be a very worthwhile technological solution.

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