On January 24 of this year I put up a short blog post about the 2011 amendment to CR 5.02. The following is the commentary I ultimately included in the 2011 supplement to Kentucky Practice volume 6 about the new rule and about electronic service generally.
Effective Jan. 1, 2011, the Rule expressly authorizes electronic service. Under the amended Rule, service may be made by electronic means on a party or attorney who has consented to accept electronic service in a written notice that is filed with the court clerk and served on all parties. The Rule does not define what is meant by electronic service, and does not limit the method of electronic service to Internet-based electronic mail (e-mail), which has become by far the most common method of serving documents electronically in litigation in the authors’ experience.
Thus, theoretically one could select and indicate in a notice some method of electronic service other than e-mail, including telecopier (fax), disc/CD-ROM, or modem-based online services as the preferred method of accepting service. Likewise, the parties may be agreement decide to use a particular mode of electronic service. Other methods of electronic service that are sometimes utilized are a ftp (file transfer protocol) site or a managed file transfer service, such as LeapFILE, which can accommodate a large data or document production that is not deliverable by traditional e-mail. Strictly speaking, these types of electronic data transfers are not by e-mail. In addition, some vendors operate electronic filing and document exchange services that are specifically tailored for litigation involving a multiplicity of parties. Those services maintain an electronic docket of all filings in the legal matter, and provide e-mail filing receipts for and notification to all parties of all filings, with service of filed documents and exhibits to a distribution list that has been set up for that case.
Under the new Rule, the notice to accept electronic service must include the e-mail address(es), fax number(s), or other electronic delivery method(s) by which electronic service will be accepted. Electronic service is complete upon transmission unless the transmitting party learns the electronic transmission did not reach the person intended to be served.
In practice many lawyers began to use e-mail within a few years of the advent of the public Internet in 1993-94 as a substitute for hand-delivery or fax, either alone or to augment first-class mail service, particularly for time-sensitive matters. The new amendment officially sanctions electronic service as the exclusive means of service where the receiving party has filed and served the proper notice. The amended Rule does not provide for or require certain other conditions that are sometimes agreed to or imposed on electronic service, such as delivery confirmation tags or e-mails back to the sender confirming that the original e-mail was delivered as addressed as well as opened by the recipient, or, for electronic transmissions containing confidential or sensitive information or attachments, forwarding restrictions and/or passwords needed to open attachments.
Finally, strictly speaking the amended Rule does not require the sending party to use electronic service where an opponent has consented to same, though due to efficiency and cost savings that may be achieved by electronic service such would appear to be obviously preferable to service of paper copies either by hand, regular mail, or an expedited mail or courier delivery method. If a litigant wishes to require electronic service on itself, and an opponent refuses, presumably the trial court has discretion and authority to direct that the opponent utilize electronic service in the absence of some special consideration making electronic service impracticable for the opponent.
The foregoing post includes commentary reprinted from the forthcoming 2011 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer and Todd V. McMurtry, with permission of the authors and publisher. Copyright (c) 2011 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-litigation-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.
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