Friday, December 14, 2012

Have Your E-mail Ready! New Rules in 2013 on the use of e-mail service

On January 1, 2013 a new rule goes into effect on the service of pleadings. It mandates that both attorneys and pro se litigants involved in civil cases must include an e-mail address for service of an appearance and on all pleadings filed in court.
The amendments to Supreme Court Rule 11 make the following changes:

Rule 11. Manner of Serving Papers Documents Other Than Process and Complaint on Parties Not in Default in the Trial and Reviewing Courts

(a) On Whom Made. If a party is represented by an attorney of record, service shall be made upon the attorney. Otherwise service shall be made upon the party.

(b) Method. Papers Documents shall be served as follows:

*  *  *

(6) by transmitting them via e-mail to the designated e-mail address of record for the attorney or party; or

(7) by transmission through a service provider that provides an electronic in-box for those parties registered to use the service.

                                            *  *  *

(d) E-Mail Address. A party or an attorney must include on the appearance and on all pleadings filed in court an e-mail address for service of documents.

Notice that the word “papers” was replaced with the term “documents” and now documents may be served using the e-mail address on record for the other attorney or party. Having such an e-mail address is now mandatory and must be listed on all appearance and pleadings. Also, attorneys must be able to receive documents by e-mail. This is a big change for lawyers who have worked only in the "paper world" up to now.

One curious change was that it appears that attorneys cannot “opt out” of service by e-mail like we can with service by fax. See SCR 11(i).

For the most part, I have no problem with service by e-mail. In fact, I generally prefer to receive documents by e-mail. However, problems come with problem attorneys - those that play games. Up to now, I have really only trusted e-mail communications with attorneys I trust to genuinely acknowledge receipt of e-mails. Of course there is no way to verify receipt of documents by regular mail unless you use certified mail - so no big change there.

What will be some of the issues - even for the most trusting of lawyers:

1)     The issue of large files sent by e-mail: While e-mails themselves are rather small, the attachments to them can be quite large. Depending on your e-mail service, you may find limitations in the size of attachments sent or received from your e-mail address. Thus, if an opposing lawyer sends you a 300 page monolith Motion for Summary Judgment, your e-mail service may reject it as too large. In such instances you might not even get notice from your service that it rejected the e-mail. Similarly if you try to send such a large file, you may find it still stuck in your outbox long after you hit “send” because it cannot be processed.

SOLUTIONS: Find out what your e-mail size limits are and keep to the limits. Sometimes files must be sent in multiple e-mails so that they make it through and note that the size limits may be different for sending and receiving. Also if you send a large file, you might first send a preliminary e-mail with no attachments notifying the receiver that you are about to send a large file and that they should look out for it. You might also put a notice in your e-mail with information on your service’s size limits. (25 MB is fairly standard)

2)     The issue of spam filters. Oftentimes your e-mail service will automatically block or reject e-mails it believes are spam. Since it is automatic, an opposing attorney may have genuinely sent you an e-mail but it was redirected to a folder reserved for your spam e-mails.

SOLUTIONS: Regularly check your spam filters and be careful of the automatic deleting of files in them. You will have to learn the settings your service sets up for spam. Also you should probably have an e-mail address designated only for legal papers and official business. If you have customarily used only one e-mail address for both personal and business, the issue of spam can become overwhelming. Finally if you receive e-mails with otherwise inappropriate content from certain friends and attorneys (you know who you are), these e-mails are more likely to be rejected by spam filters. Again , an e-mail address for business only purposes may be the best solution. Finally, be aware that an e-mail sent to one recipient is more likely to get through a spam filter. An e-mail sent to more than one recipient is likely to be targeted as spam.

3)     The issue of confidentiality. You may not realize it, but your e-mail service likely keeps copies of e-mail on a server (a computer owned by your service provider and located in a distant place) after being sent or received. Thus your e-mail may be sitting somewhere outside your office long after you have read it and perhaps even after you saved it on your computer. While pleadings filed with the court are not confidential, your communications with clients are. Thus you should be aware that after 180 days, e-mail messages generally lose their status as a protected communication under the Electronic Communications Privacy Act, and become just another database record. (18 U.S.C. § 2703)

SOLUTION: If you cannot do this yourself, get a tech person to configure your office computers to backup all of your e-mail on a regular basis. Also ensure that the settings of your e-mail service will not keep copies of e-mails on outside servers for longer than 60 or 90 days. Finally beware of forwarding e-mails. Your office should have procedures in place be extremely careful of forwarding e-mail as they often contain confidential information. Example: your client approves a pleading but with notes or comments. Obviously this information has to be scrubbed from an e-mail sent to the opposing attorney.

4)     The issue of formatting e-mail attachments. The new rule does not indicate what format attorneys can send pleadings. The file format of “PDF” is the most accepted format and should be the standard used.

SOLUTIONS: To open a PDF file you will need to download Adobe™ Acrobat Reader. To create a PDF file, you can do that from Microsoft Word. Instead of saving a document as a “Word file”, you save it as a “PDF file”. It can then be attached to an e-mail. In the instance you use “Word Perfect” - well, get with it grandpa, I cannot help you. In any case, I assume the rule means that you are to send copies of filed pleadings after they have been scanned. This article is far too  limited to get into the issue of scanning into a PDF.
The bottom line is that if much of what I have described confuses more than clarifies, you need help from a tech person. The practice of law is becoming increasingly electronic and obviously the Supreme Court will be forcing us all to use this technology. While there are huge increases in efficiency, there are also huge issues of security, reliability and confidentiality and you may need help to protect yourself and your clients.