From the Newsletters - Yes, You Have to Accept Service by Email

Mandatory acceptance of email service is here, so it's time to start thinking about how to manage email traffic and which file formats are best for email service.

"E-mail service: Ready or not, it has arrived"
By Mark C. Palmer
Standing Committee on Legal Technology - November 2016

Effective last January, the Illinois Supreme Court amended its rules to require parties to accept service by email. You don't need to opt in and you can't opt out, notes Mark Palmer in the latest ISBA Legal Technology newsletter.

With that in mind, he offers a brief overview of the rules governing email service and the issues they raise.

Email traffic management. Under Supreme Court Rule 131(d)(1), "attorneys filing or serving documents in any cause must include an email address on the document," Palmer writes. "This includes filings made in Illinois appellate courts (also see Rules 341(e) and 367(d))." The email address you provide, and up to two others, "qualif[y] as one of the acceptable forms of service under Rule 11(b)(6)."

Because email service is mandatory, lawyers should take a hard look at how they manage email traffic, Palmer writes. "For example, a law firm might consider designating a specific email address for all service to the firm, or to and for each attorney, or even a separate email address for every case file."

And exception (for now) for pro se litigants. Though accepting service via email is mandatory for lawyers, it isn't for pro se litigants. "If the unrepresented party omits an email address, then service must be made by a method specified in Rule 11 other than email transmission," Palmer writes.

He speculates that "[t]his opt-in allowance by unrepresented parties may see some changes as Illinois courts establish the procedures and requirements for electronic filing of all civil cases in Illinois by 2018." He also notes that the "statewide standardized forms developed by the Illinois Supreme Court Access to Justice Commission, which are required to be accepted by all Illinois Circuit Courts, make it easy for pro se litigants to opt-in to email service" by checking a box.

No required file format, but consider PDFs. Amended Rule 11 "is purposefully vague as to what format the document must or should be in when transmitted electronically via email," Palmer writes. He quotes the Committee Comment to the amendment, which reads as follows:

[T]he Committee considered whether special additional rules should apply to documents served by email, e.g., specified file formats, scan resolutions, electronic file size limitations, etc. The Committee rejected such requirements in favor of an approach which provides flexibility to adapt to evolving technology and developing practice. The Committee further anticipates good faith cooperation by practitioners. For example, if an attorney serves a motion in a format which cannot be read by the recipient, the Committee expects the recipient to contact the sender to request an alternative electronic format or a paper copy.

But PDF is a great default format, in no small part because it reveals less metadata than, say, a Word document. "While a PDF still may have metadata, such as the author's name, keywords, and copyright information, it should protect against other document information such as who worked on the document and what revisions were made."

Proof of service and effective date. "Under Supreme Court Rule 12(b)(6), the attorney serving by email must file a certificate stating 'the time and place of transmission to a designated e-mail address of record,'" Palmer writes. "Non-attorney filers must include the same information in affidavit form pursuant to a verification under 735 ILCS 5/1-109. Email service is deemed complete on the first court day following transmission, pursuant to Rule 12(f)."

Theoretically, then, "an email could be transmitted from the sender's computer at 11:59 p.m. and service could be considered completed as of a minute later, even if the email with attached service document has not made the complete electronic journey to the recipient's inbox."

The stubborn status quo. Palmer wryly notes that traditional means of service will persist despite lawyers being required to accept email. "The fax machines will continue to beep and chirp," he writes. "The copy machines will continue to churn out copy after copy of pleadings for mailing. The mail carrier's bin will remain full of outgoing and incoming parcels, all of which might have been avoided with a click to attach a PDF and a click to send it."