Monday, January 7, 2013

Supreme Court Backtracks on E-mail Service

The Illinois Supreme Court moved swiftly over the Christmas Holiday to revise the rules of service of court documents/pleadings. It had previously wanted to force all lawyers and parties to get set up for service and receipt of court papers by e-mail. (see post below)  But last week the Court clearly has revisited whether that was such a good idea and has now revised the revised Rule 11.

Thus in this sudden about-face before the new rule was even effective, email service of documents is now just allowed, it is not mandatory. If a lawyer or party wants to get service by email, then he or she should list an email address on pleadings filed with the court. Summarized as follows:
  • If an email address is listed on pleadings and/or email is used by the sending party themselves, then that attorney or party consents to the use of email and service by email is valid.
  • If an email address is not listed on the filed pleadings OR the party or attorney rescinds permission to use email, then service by email is not valid.
See the re-revised rule with additions underlined and deleted portions struck through:

Rule 11. Manner of Serving 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. Documents shall be served as follows:
(1) by delivering them to the attorney or party personally;

(2) by leaving them in the office of the attorney with the attorney's clerk, or with a person in charge of the office; or if a party is not represented by counsel, by leaving them at the party's residence with a family member of the age of 13 years or upwards;

(3) by depositing them in a United States post office or post office box, enclosed in an envelope, plainly addressed to the attorney at the attorney's business address, or to the party at the party's business address or residence, with postage fully prepaid;

(4) by delivering them to a third-party commercial carrier--including deposit in the carrier's pick-up box or drop off with the carrier's designated contractor--enclosed in a package, plainly addressed to the attorney at the attorney's business address, or to the party at the party's business address or residence, with the delivery charge fully prepaid; or

(5) by transmitting them via facsimile machine to the office of the attorney or party, who has consented to receiving service by facsimile transmission. Briefs filed in reviewing courts shall not be served by facsimile transmission.
(i) A party or attorney electing to serve pleadings by facsimile must include on the certificate of service transmitted the telephone number of the sender's facsimile transmitting device. Use of service by facsimile shall be deemed consent by that party or attorney to receive service by facsimile transmission. Any party may rescind consent of service by facsimile transmission in a case by filing with the court and serving a notice on all parties or their attorneys who have filed appearances that facsimile service will not be accepted. A party or attorney who has rescinded consent to service by facsimile transmission in a case may not serve another party or attorney by facsimile transmission in that case.

(ii) Each page of notices and documents transmitted by facsimile pursuant to this rule should bear the circuit court number, the title of the document, and the page number.

(6) by transmitting them via e-mail to the designated e-mail address of record for the attorney or party if the attorney or party consented to e-mail service. The listing of a designated e-mail address on documents or the use of e-mail service shall be deemed consent by that party or attorney to receive e-mail service. Any party may rescind consent of e-mail service in a case by serving a notice on all parties or the attorneys of record. A party or attorney who has rescinded consent to e-mail service in a case may not serve another party or attorney by e-mail in that case; or
(7) by transmission through a service provider that provides an electronic in-box for those parties registered to use the service.

(c) Multiple Parties or Attorneys. In cases in which there are two or more plaintiffs or defendants who appear by different attorneys, service of all documents shall be made on the attorney for each of the parties. If one attorney appears for several parties, that attorney is entitled to only one copy of any document served upon the attorney by the opposite side. When more than one attorney appears for a party, service of a copy upon one of them is sufficient.

(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. Mandatory E-Mail Service. The use of e-mail service is mandatory if a local circuit adopts mandatory e-filing pursuant to Illinois Supreme Court Electronic Filing Standards.
Amended April 8, 1980, effective May 15, 1980; amended April 10, 1987, effective August 1, 1987; amended October 30, 1992, effective November 15, 1992; amended December 29, 2009, effective immediately; amended Oct. 24, 2012, effective Jan. 1, 2013; amended Dec. 21, 2012, eff. Jan. 1, 2013.

Committee Comment
(December 21, 2012)
New subparagraphs (b)(6) and (7) were created to allow for service of documents electronically. The amendments facilitate electronic communications among the court, parties, and counsel and complement the expansion of e-filing in the trial courts. However, electronic service may not be appropriate in all instances. For example, absent a secure method for electronic service of documents, other service options should be used for cases or documents filed confidentially.