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Home / Commentary / Dropbox ate my discovery requests: The current law on electronic service of legal documents

Dropbox ate my discovery requests: The current law on electronic service of legal documents

Greg Heinen is an associate and business litigation lawyer with Foley & Lardner. He is a member of the firm’s Business Litigation and Dispute Resolution and Antitrust Practices.

Greg Heinen is an associate and business litigation lawyer with Foley & Lardner. He is a member of the firm’s Business Litigation and Dispute Resolution and Antitrust Practices.

Imagine this: You’re a lawyer representing one of many defendants in a new lawsuit. You receive an email from the plaintiff’s lawyers, addressed to you as well as counsel for 19 other defendants. All that’s in the email is a link to a Dropbox folder, which contains 20 sets of discovery requests (one to each defendant).

You haven’t agreed to accept service of documents by email, and this is the only copy you receive of these requests. Has the plaintiff successfully served these documents under current law, triggering your deadline to respond to them? Just as importantly, within a few years, will this qualify as effective service?

Though it’s become passé to talk about how the Internet has fundamentally changed every aspect of our lives, many industry arenas remain in the midst of this transformation, and the legal profession — notoriously resistant to change — is one of them.

Making the change even more challenging, the use of various electronic methods to serve and file various documents in lawsuits, like most innovations, is currently subject to a patchwork of federal and state law requirements, which we’ll walk through below.

Federal court rules

In federal court, Federal Rule of Civil Procedure 5(b)(2)(E) was amended in 2018 to clarify that documents can be served electronically by: (1) filing a document through the court’s electronic-filing system (ECF), which sends it to all registered users, or (2) “sending it by other electronic means that the person consented to in writing.” Fed. R. Civ. P. 5(b)(2)(E). “Other electronic means” is broader than just email, presumably encompassing Dropbox, Hightail and other file-sharing services used to send discovery requests, assuming of course that the recipient provided the required written consent.

“But what if I only consented to service by email?” you may ask. “Are these other means automatically included?” Under the federal rules, the answer appears to be “no.” The text of the rule implies that the “other electronic means” need to be “consented to in writing,” and the comments to the rule clarify that this consent “can be limited to service at a prescribed address or in a specified form, and may be limited by other conditions.” Thus, despite the fact that many file-sharing methods technically use email, specific consent to each method is likely required if challenged. Furthermore, the consent must be expressed and cannot be implied from past conduct, whether in that case or prior cases between the same parties or attorneys.[1]

State court rules

Unsurprisingly, state court rules vary with regard to service by email. Some of the largest states have adopted provisions that are very similar to the federal rules. In California, for example, electronic service must be either court-ordered or accepted by express consent.[2] Electronic service is defined broadly as “service of a document, on a party or other person, by either electronic transmission or electronic notification,” without specifically referencing emails.[3] Similarly, in New York’s Supreme Court, electronic service can only be made upon parties who have consented to it.[4] Electronic service is broadly defined as “any method of transmission of information between computers or other machines, other than facsimile machines, designed for the purpose of sending and receiving such transmissions, and which allows the recipient to reproduce the information transmitted in a tangible medium of expression.”[5]

By contrast, certain states, like Florida, have made service by email mandatory for “[a]ll documents required or permitted to be served on another party.”[6] Because email service is mandatory, Florida state law also requires certain formatting for emails. For example, Florida requires .pdf attachments of documents and that subject lines must contain the words “SERVICE OF COURT DOCUMENT” (in all-capitals) along with the case number of the proceedings.[7] Additionally, the body of the email must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that email, and the name and telephone number of the person required to serve the document.[8] Some other states, like Texas, allow service by email (without prior consent) but do not require it.[9] Still others, like Tennessee, allow service by email but require contemporaneous notification by mail, fax, or hand delivery that the document was sent electronically.[10]

Confused yet? As time goes on, state laws on these issues may become more uniform, but if history is any guide . . . I wouldn’t hold my breath. For lawyers that practice in multiple states, a good practice tip is to always consult local counsel regarding the requirements for methods of service in that jurisdiction.

Electronic service in Wisconsin

In Wisconsin, it’s arguably unclear whether email or other electronic methods of service are currently valid. A bill was reintroduced in the Wisconsin Legislature this year (after failing to pass in 2017) that will amend Wisconsin’s rules of civil procedure on electronic service to essentially mirror the federal rules, but only as to email.[11] Whether “electronic mail” in this bill is broad enough to include electronic file-sharing services is not clear.

Interestingly, though certain of the bill’s sponsors have stated that current Wisconsin law does not allow for service of documents by email,[12] the current state of Wisconsin law is actually muddier than that. A section of Wisconsin’s electronic filing statute, Wis. Stat. § 801.18(6)(b), effective July 1, 2016, requires “a document other than an initiating document” (such as a summons and complaint) that “requires personal service” to “be served by traditional methods unless the responding party has consented in writing to accept electronic service or service by some other method”[13] (emphasis added). To what documents does this provision apply? That’s not clear, but the language is broad enough to arguably encompass almost any document following the summons and complaint, including discovery documents. See Wis. Stats. §§ 801.14(1), (2). As a result, assuming 2019 Assembly Bill 59 is likely to be enacted, it would be helpful to Wisconsin lawyers for the law to clarify, at a minimum, whether consent to email service can also include “other electronic methods.” Without that clarification, a potential conflict will exist between Wis. Stat. § 801.18(6)(b) and Wis. Stat. § 801.14(2), as amended.

Local court rules may provide an additional wrinkle to this analysis. For example, Milwaukee County[14] Circuit Court Rule 1.13(C), “Methods of Service of Motions, Briefs, Affidavits, Notices and Other Such Documents” allows these documents to be served “by personal delivery, by mail, or by facsimile or electronic mail transmission” (emphasis added). The caveat is that any document served by fax or email must also have a copy of the document “mailed on the same day as the facsimile or electronic mail transmission.” This rule is silent on service of discovery documents, and the title of the rule suggests that discovery requests are not among the documents that can be served in this manner. Of course, now that electronic filing is mandatory in Milwaukee County, this local rule may no longer be relevant in any event.

Where are we headed from here on electronic methods of service? The one thing we can say with certainty is that soon, every state and federal court is likely to have both electronic filing and some type of rule on service by electronic methods. Lawyers must stay current as the law in this area develops, in the jurisdictions in which they practice and, when in doubt, should insist that each document be served via a non-electronic method as well, to be on the safe side.

[1] See Advisory Committee Notes to Fed. R. Civ. P. 5, 2001 Amendments; see also Ortiz-Moss v. N.Y. City DOT, 623 F. Supp. 2d 379, 407 (S.D.N.Y. 2008) (holding that even though defendants did not object to email and facsimile service earlier in the litigation, such services did not constitute valid service because it was not specifically agreed to in writing).
[2] Cal. Rules of Court 2.251.
[3] Cal. Code Civ. P. § 1010.6(a)(1)(A).
[4] NY CLS Unif. Rules, Civil Cts § 202.5-b(b)(2).
[5] NY CLS Unif. Rules, Civil Cts § 202.5-b(a)(2).
[6] Fla. R. Jud. Admin. 2.516(b)(1) (“All documents required or permitted to be served on another party must be served by email, unless this rule otherwise provides.”); see also Illinois Supreme Court Rule 11(c) (requiring service of documents electronically unless otherwise directed).
[7] Fla. R. Jud. Admin. 2.516(b)(1)(E).
[8] Id.
[9] Tex. R. Civ. P. 21a(a).
[10] Tenn. R. Civ. P. 5.02(2)(a).
[11] See 2019 Assembly Bill 59, adding the following language to Wis. Stat. § 801.14(2):

Except as otherwise provided
14in s. 801.18 (6) (a) and (b), if an attorney, or a party if appropriate, has consented in
15writing to accept service by electronic mail, delivery of a copy within this section may
16also include transmitting a copy of the paper by electronic mail to his or her primary
17or other designated electronic mail address.

(available at https://docs.legis.wisconsin.gov/2019/related/proposals/ab59)
[12]http://docs.legis.wisconsin.gov/misc/lc/hearing_testimony_and_materials/2019/ab59/ab0059_2019_03_14.pdf
[13] Wis. Stat. § 801.18(6)(b).
[14] Milwaukee County is the only county in Wisconsin that currently mentions email service of documents in its local rules. As the majority of Wisconsin counties have rules regarding filing documents via fax, the new electronic filing statute and revisions to allow email service present an opportunity for updates to local rules addressing this issue, if necessary.

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