Changes to N.C. Civil Procedure Rule 5 and N.C. Business Court Rule 3

By John P. Marshall

Effective Oct. 1, 2020, House Bill 679 became law, amending Rule 5 of the North Carolina Rules of Civil Procedure.

The changes are outlined below:

1. Service is now proper on a party’s attorney of record via electronic mail to an email address of record with the court in the case. Such email must be sent by 5:00 p.m. Eastern Time on a regular business day. If the email is sent after 5:00 p.m., it will be deemed to have been sent on the next business day.

2. Service may also be made on a party by email, but only if the party has consented to receive email service in the case at a particular email address, and a copy of the consent is filed with the court by any party. The same rules apply as set forth in paragraph 1 as to timing of service by 5:00 p.m.

3. Where electronic filing is available (for example, the Business Court), an automated certificate of service generated by that system satisfies the requirements of Rule 5.

4. The certificate of service must show the date and the method of service, and if by email or fax, the email address or fax number of each person served in that manner.

5. If you serve via email, just like service via fax, there is no “three-day rule” that exists for regular mail.

6. Service in other manners heretofore allowed under Rule 5 are still allowed.

On Oct. 13, 2020, the North Carolina Supreme Court modified Rule 3 of the Business Court Rules to conform that rule to Rule 5 of the North Carolina Rules of Civil Procedure.

Many firms are studying these changes and are attempting to come up with a best practices model that will embrace and incorporate the changes to Rule 5. Personally, management of my junk box and clutter box and understanding what ends up there and why is a challenge. Also, just dealing with the sheer volume of email that hits my inbox is a real challenge. One firm that I am aware of is directing all email that would otherwise be directed to a particular attorney to a central email inbox that will calendar and direct the email to whom it should go. Others may have different and even better ideas. Please feel free to weigh in with what your firm is doing. We could all benefit.

The Comment to Rule 5 of the General Rules of Practice indicates that the North Carolina Judicial Branch will implement a statewide electronic-filing and case-management system beginning in 2021. The system will be made available across the state in phases over a five-year period.

So, stay tuned!