Electronic Service – Three Days for Emailing?

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By Austin K. Sweet

The law is often slow to catch up with technology, but thankfully courts moved quickly to adopt electronic filing.  Most members of the Young Lawyers Section living in Washoe County or Clark County have spent our entire careers with electronic filing and can hardly bear the thought of actually leaving the office and go stand in line at the courthouse to file a document.  But the quick adoption of electronic filing left some oddities – namely, the handling of electronic service.

Before electronic filing, documents could be served by hand or by first class mail.  Because service by mail takes longer, the rules provide that a responding party shall have three extra days to respond when a document is served by mail.  NRCP 6(e).  This rule makes perfect sense.

Then fax machines came along, creating a new method of service.  Facsimile service is only acceptable if the parties consent, and still allows for three extra days to respond.  NRCP 5(b)(2)(D); NRCP 6(e).  As technology advanced, service by email became acceptable and was lumped into the rules with service by fax.  Again, three days are added to the prescribed period to respond.  Id.  That’s where the logic starts to get fuzzy.

Things became more convoluted when electronic filing was introduced.  The Nevada Electronic Filing and Conversion Rules (“NEFCR”) were adopted by the Supreme Court and became effective on March 1, 2007.  Second Judicial (Washoe County) has adopted the NEFCR.  NEFCR 9(b) provides that the court’s electronic service provider must send an email to all registered users that a document has been filed.  NEFCR 9(f) provides that electronic service is complete at the time of transmission of the NEFCR 9(b) email.

Eighth Judicial (Clark County) has not adopted the NEFCR, instead adopting its own electronic filing rules.  EDCR 8.05(a) provides that documents electronically served through that court’s electronic filing process are subject to NRCP 5(b)(2)(D) and, by proxy, NRCP 6(e).

So what does all this mean?  When documents are electronically served through the court’s filing system in the Nevada Supreme Court or in Washoe County, three days are not added to the prescribed period to respond.  When documents are electronically served through the court’s filing system in Clark County, three days are added.  Likewise, when documents are electronically served in accordance with an agreement between the parties, three days are added.

Not surprisingly, this has created confusion.  Practitioners in Washoe County regularly misinterpret the relationship between NEFCR 9(f) and NRCP 6(e) and mistakenly believe that they are entitled to an additional three days when documents are served through eFlex.  This confusion is so widespread that the rules are rarely enforced as written and the Second Judicial judges are discussing revisions to the rules.

There is an easy solution to this problem – stop adding three days for emailing.  In today’s world of computers and smart phones, most attorneys check their email constantly.  It is likely that the average attorney reads the automated notifications from eFlex / Wiznet within minutes of receiving them.  By contrast, documents served by hand must be driven (or biked) from one office to another, processed through the firm, and eventually delivered to the attorney handling the case.

Chances are, attorneys are able to access and read electronically-served documents hours, or even days, before they are able to access and read hand-served documents.  Why then are attorneys granted three extra days to respond to documents served electronically?  If logic ever existed for this rule, it does not exist today.

The state and local rules throughout Nevada should be amended to reflect the realities of today’s electronic world.  Adding three days for electronic service is counterintuitive and unduly dilatory.  The rules should be modified and clarified to plainly provide that documents served electronically are deemed received the day they are served without adding three days.

Austin K. Sweet is an Associate at Gunderson Law Firm. He earned his Juris Doctorate from Boston University School of Law and can be contacted directly at asweet@gundersonlaw.com or 775-829-1222.

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