Navigating Rule 5: Can I Just Send You an Email?
By Welcome to the future — where even serving pleadings requires a login screen.
. . .
In October of 2020, the North Carolina legislature gave Rule 5 of the North Carolina Rules of Civil Procedure a digital makeover. Rule 5, as amended, wholeheartedly embraces the electronic filing system and makes it the go-to method for serving applicable pleadings and papers. Gone are the days of sending opposing counsel an email containing your discovery requests and responses. Now, you need to log into eCourts, toss your pleading into the digital realm of Tyler Technologies, and cross your fingers.
Okay, put down your pitchforks. I know we should embrace a system that eases access to the courts.
Putting the electronic system’s quirks aside, I’d argue the primary method of communication for an attorney is email. It’s easy, creates a record, and it’s practically glued to our fingertips. For most pleadings, filing with the court is a given. Discovery is unique in that it’s generally kept off the record.
Rule 5 applies to “every paper relating to discovery required to be served upon a party unless the court otherwise orders,” which includes interrogatories, requests for production of documents, and requests for admission.
So, if I email opposing counsel to serve discovery, can they throw a curveball and claim it was improperly served? Let’s look at Rule 5.
Subsection (b) of Rule 5 tells us how service is made:
Service is made under this subsection if performed on an attorney through the court’s electronic filing or case management system at an email address of record with the court. Service is made under this subsection if performed on a party through the court’s electronic filing system or case management system at an email address of record with the court in the case if the party has consented to receive service through the court’s electronic filing or case management system and a copy of the consent is filed with the court by any party. Service through the court’s electronic filing or case management system must be sent by 5:00 P.M. Eastern Time on a regular business day. If the service is sent after 5:00 P.M., it will be deemed to have been sent on the next business day.
When service through the court’s electronic filing or case management system is not available, service may be made as follows:
(1) Upon a party’s attorney of record:
a. By delivering a copy to the attorney. Delivery of a copy within this sub-subdivision means handing it to the attorney, leaving it at the attorney’s office with a partner or employee, or sending it to the attorney’s office by a confirmed telefacsimile transmittal for receipt by 5:00 P.M. Eastern Time on a regular business day, as evidenced by a telefacsimile receipt confirmation. If receipt of delivery by telefacsimile is after 5:00 P.M., service will be deemed to have been completed on the next business day. Service may also be made on the attorney by electronic mail (e-mail) to an e-mail 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 e-mail is sent after 5:00 P.M., it will be deemed to have been sent on the next business day.
b. By mailing a copy to the attorney’s mailing address of record with the court.
c. In the manner provided in Rule 4 for service and return of process.
(2) Upon a party:
a. By delivering a copy to the party. Delivery of a copy within this sub-subdivision means handing it to the party.
b. By mailing a copy to the party at the party’s last known address or, if no address is known, by filing it with the clerk of court.
c. Service may also be made on the party by electronic mail (email) 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. Such email must be sent by 5:00 P.M. Eastern Time on a regular business day. If the e-mail is sent after 5:00 P.M. Eastern Time, it will be deemed to have been sent on the next business day.
d. In the manner provided in Rule 4 for service and return of process.
Service by mail shall be complete upon deposit of the pleading or paper enclosed in a post-paid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service.
N.C. Gen. Stat. § 1A-1, R. 5 (emphasis added).
Unless my statutory interpretation skills are rusty, Rule 5, as amended, mandates that we serve discovery on opposing counsel via the electronic filing system, provided that opposing counsel has an email address on record with the court.
If the electronic filing system is unavailable due to (1) eCourts not being live in your county yet, or (2) eCourts experiencing technical issues, you can send discovery to opposing counsel via email, provided they have an email address on record with the court. If eCourts is unavailable and they don’t have an email address on record, you will need to physically deliver, mail, or fax the discovery to them.
What if the electronic filing system is available, but opposing counsel does not have an email address on record with the court? Rule 5 does not appear to provide guidance. One could argue that the language “[w]hen service through the court’s electronic filing or case management system is not available” means that the electronic filing system is operational, but opposing counsel does not have an email address on record. However, the inclusion thereafter of “[s]ervice may also be made on the attorney by electronic mail (email) to an email address of record with the court in the case” doesn’t seem to support this stance.
Some conclusions result from this analysis.
- If the electronic filing system is active in your county, and opposing counsel’s email address is on record with the court, you need to serve them through the electronic filing system.
- If the electronic filing system is active in your county, but opposing counsel’s email address is not on record with the court, the rule does not tell you how to serve them. In this scenario, it is probably best to contact opposing counsel and ask how you can serve them to avoid an issue.
- If the electronic filing system is not active in your county, and opposing counsel’s email address is on record with the court, you can shoot them an email.
- If the electronic filing system is not active in your county, and opposing counsel’s email address is not on record with the court, you need to serve them through physical delivery, mail, or fax.
However, as we all know, much of what we do relies on self-regulation. If you send discovery via email, most attorneys probably won’t bat an eye or raise a fuss. On the flip side, we’re always on the lookout for leverage. Given that Rule 5 applies to more than just discovery, you might want to play it safe and follow the rule to the letter. It may feel unnecessary, but following the rule is easier than explaining to the judge why you didn’t.
Next up: mandatory service via blockchain.