Lawyers who continue to serve paper copies by regular mail of documents that are eFiled or electronically served are simply wasting money and staff time. According to the Kentucky eFiling rules, a party may rely on the CourtNet electronic filing system to comply with service obligations of CR 5 and electronically serve all those in the case who have signed up for eFiling without additional service, either by regular mail or email. Section 11(1) of the eFiling rules of the Court of Justice provide as follows:
Notice of Electronic Filing. Upon the electronic filing of a document, the court’s eFiling system will automatically generate and send a Notice of Electronic Filing (NEF) to all eFilers/parties associated with that case, along with a hyperlink to the electronic document. Transmission of the NEF with a hyperlink to the electronic document constitutes service of the filed document under CR 5. No other service on those parties is required. (Emphasis added.)
Thus, a party who wishes to rely solely on electronic service by eFiling a document through CourtNet in a case where all parties are engaged in eFiling may use a certificate of service substantially similar to the following:
“I hereby certify that on this ____ day of ________, 2018, I electronically filed the foregoing [motion, response, etc.] with the Clerk of Court by using the Kentucky Court of Justice eFiling website, which will send a notice of electronic filing and a link to the document to those listed below. I further rely on Section 11(1) of the eFiling Rules of the Court of Justice that provides that transmission of a hyperlink to the electronic document constitutes service under CR 5.”
Such a certificate should ideally be followed by a list of all counsel and their postal mail and electronic addresses. Counsel should bear in mind that this type of service relates only to documents (other than process, summonses, or subpoenas) that are eFiled, while documents that are served but not filed must still be served by one of the methods set forth in CR 5.02. If all parties have filed notices of election of electronic service under CR 5.02(2), service of a document that is served but not filed should be electronic, and such electronic service need not be supplemented by regular mail service.
Notwithstanding the foregoing, many Kentucky litigators voluntarily continue to serve each other electronically with eFiled documents where such service is requested in a notice of election of electronic service since such service includes the eFiled document as an attachment and obviates the need for the recipient to click on two links to view and download the document on CourtNet.
NOTE: The foregoing post includes commentary reprinted from the forthcoming 2018 supplement to 6 Philipps & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2018 Thomson Reuters. For more information about this publication click here.
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