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Will You Accept Service via Email?

By George Khoury, Esq. on October 05, 2017 | Last updated on March 21, 2019

Without fail, in every litigation matter, this question is bound to come up (particularly around the time discovery responses are due): Will you accept service of pleadings and other documents via email? But, note, as one of our readers pointed out, in some states, such as Illinois, accepting pleadings via email is a requirement.

Under FRCP Rule 5, if the person being served consents to receiving service by electronic means, such as email or fax (or ECF), then service will be considered complete upon transmission. However, as the rule implies, you don't have to consent to electronic service (of documents that go through ECF), but doing so could prove rather beneficial. Most state courts also will allow service via email, if the party being served has consented.

The Rule

FRCP 5(b)(2)(E) states:

Serving and Filing Pleadings and Other Papers -- Service: How Made -- Service in General.

A paper is served under this rule by:

sending it by electronic means if the person consented in writing-in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served.

Scratching Backs

The oft forgotten idiom, you scratch my back and I'll scratch yours, is really applicable here. You, like every other attorney out there, are likely to be in a position sometime where saving the 5 to 10 minutes it takes to print up, stuff, weigh, and stamp an envelope will mean quite a bit to you. As such, offering to mutually consent to receive service via email early on will show both a cooperative attitude, and, that ever elusive, professional courtesy.

Protip: Do not forget to scrub your metadata from any documents you send via email.

Saving Dollars

Depending on which side of a dispute you're on, getting an opposing counsel to consent to service via email, particularly for producing documents where physical delivery would be costly due the physical size of the production, can save quite a bit of money. Notably though, if you can't do it yourself and need professional help to digitize your docs, sending discovery via email can also get rather costly, and it may not be recoverable.

Conversely, you may not want to consent to email service for this exact reason. If you anticipate that the other side is going to bury you in their document production, requiring them to produce actual paper documents can obviate your need for printing up $1,000 worth of paper.

Protip: you can limit your consent to accept electronic service to pleadings only. But be fair warned: For every action, there is a reaction.

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