Earlier today, the Florida Supreme Court released Opinion No. SC10-2101. All Florida lawyers need to read this opinion ASAP since it makes MAJOR changes to the Florida Rules of Judicial Administration, with conforming amendments to the Florida Rules of Civil Procedure, the Florida Rules of Criminal Procedure, the Florida Probate Rules, the Florida Rules of Traffic Court, the Florida Small Claims Rules, the Florida Rules of Juvenile Procedure, the Florida Rules of Appellate Procedure, and the Florida Family Law Rules of Procedure and Forms.
The good news for litigators is that your clients are going to save a lot of money on copies and postage. The bad news is that you have less than ten days familiarize yourself, your staff, and fellow attorneys with these changes and to implement new procedures to comply with the major rule changes.
I will start with two quick quotes from the opinion regarding implementation of these changes.
First, e-mail service will be mandatory for attorneys practicing in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases, when the rule amendments take effect on July 1, 2012.
Second, when the rules take effect on July 1, attorneys practicing in the criminal, traffic, and juvenile divisions [footnote omitted] of the trial court may voluntarily choose to serve documents by e-mail under the new procedures, or they may continue to operate under the existing rules. E-mail service will be mandatory for attorneys practicing in these divisions on October 1, 2013, at 12:01 a.m. (the date on which electronic filing will be mandatory in these divisions).
Those quotes probably got your attention. If so, read on. This opinion significantly changes the way pleadings are served in Florida [state court] cases. [Note: These changes do not apply to service of the initial pleading which still requires service of process under Rule 1.070. See comment to the post for further clarification.] This blog post summarizes some of the changes by quoting the significant amendment provisions, but you really need to read the opinion to understand the full impact of all of the changes. The opinion is 216 pages, so this blog post isn’t intended to serve as an exhaustive list of all of the changes.
The main change is that the Florida Supreme Court a new Florida Rule of Judicial Administration [2.516 – Service of Pleadings and Papers] which will control service of pleadings and papers (after the initial pleading) in various judicial divisions. This rule was modeled after current Florida Rule of Civil Procedure 1.080 (Service of Pleadings and Papers) and includes many of the same provisions and requirements for service.
However, new rule 2.516 provides that all documents required or permitted to be served on another party must be served by e-mail. Under subdivision (b)(1) (Service by Electronic Mail (“e-mail”)), upon appearing in a proceeding a lawyer must designate a primary e-mail address, and may designate up to two secondary e-mail addresses, for receiving service. Thereafter, service on the lawyer must be made by e-mail. The rule does permit several limited exceptions to this requirement. A lawyer may file a motion to be excused from e-mail service, demonstrating that he or she has no e-mail account and lacks access to the Internet at the lawyer’s office. [footnote omitted] Similarly, individuals who are not represented by an attorney may designate an e-mail address for service if they wish; however, pro se litigants are not required to use e-mail service. Additionally, applications for witness subpoenas and documents served by formal notice or required to be served in the manner provided for service of formal notice are not required to comply with rule 2.516.
Subdivision (b)(1) also includes provisions addressing the time and format for e-mail service. Service by e-mail is deemed complete when the e-mail is sent. [footnote omitted] Additionally, e-mail service is made by attaching a copy of the document to be served in PDF format to an e-mail. The e-mail must contain the subject line “SERVICE OF COURT DOCUMENT” in all capital letters, followed by the case number of the relevant proceeding. The body of the e-mail 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 e-mail, and the sender’s name and telephone number. The e-mail and attachments together may not exceed 5 megabytes in size; e-mails that exceed the size requirement must be divided into separate e-mails (no one of which may exceed 5 megabytes) and labeled sequentially in the subject line.
As noted, the other subdivisions in rule 2.516 closely track the language in rule 1.080, modified to reflect the move to e-mail service. Subdivision (c) (Service; Numerous Defendants) describes procedures for service when the parties are “unusually numerous”; subdivision (d) (Filing) requires that all original documents must be filed with the court either before service on the opposing party or immediately thereafter; and subdivision (e) (Filing Defined) states that documents are deemed “filed” when they are filed with the clerk of court. Subdivisions (g) (Service by Clerk) and (h) (Service of Orders) address service of notices or other such documents by the clerk, and service of orders or judgments entered by the court, respectively. These subdivisions authorize, but do not require, the clerks and the courts to utilize e-mail service if they are equipped to do so.
In addition to new rule 2.516, we also amend the rules of procedure to delete existing provisions in the rules describing service, and add new language referencing rule 2.516.
There’s also a change to Rule 2.515 of the Rules of Judicial Administration to provide that the signature blocks on pleadings must now also include a primary email address and an optional second email address.
For most litigators, these rules take effect in less than ten days. That doesn’t give us much time to train staff on these new requirements, revise pleading forms to reflect the new signature block and “certificate of service” requirements, implement new procedures for service in accordance with rules, and file notices of email addresses in all pending cases.
The Florida Supreme Court released a separate opinion (No. SC11-399) pertaining to e-filing requirements. The implementation of that rule doesn’t start until next April, but it makes sense to familiarize yourself with its requirements before figuring out how your firm will comply with the e-mail service requirements.
After I published this post, I received a nervous call from my process server. My post did not mention that these changes apply to service of pleadings after “subsequent to the initial pleading.” Service of process continues to made in accordance with Rule 1.070. I added a note to the post to mention this. The specific wording of Rule 2.516(a), Fla. R. Jud. Admin., reads:
(a) Service; When Required. Unless the court otherwise orders, or a statute or supreme court administrative order specifies a different means of service, every pleading subsequent to the initial pleading and every other document filed in any court proceeding, except applications for witness subpoenas and documents served by formal notice or required to be served in the manner provided for service of formal notice, must be served in accordance with this rule on each party. No service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them must be served in the manner provided for service of summons.
Thank you for this information! It has been very useful.
I think it is a welcome change!
http://www.floridasupremecourt.org/decisions/2012/sc10-2101_Order_06-26-2012.pdf Now mandatory service by email not effective until 09-01-12
Thanks Lawrence. I saw the update notice this morning and posted a blog update: http://www.bplawfl.com/2012/06/27/amended-opinion-e-mail-service-is-not-mandatory-until-september-1-2012/.
How does this affect subpoenas for documents or testimony from 3rd parties? Are those individuals still served in the traditional fashion since they aren’t parties to a case?
John, I don’t see that anyone responded to your question “How does this affect subpoenas for documents or testimony from 3rd parties? Are those individuals still served in the traditional fashion since they aren’t parties to a case?” Have you heard about any clairification or answers to this question? Thanks, Lance
Lance – Everyone I discussed this with agrees that subpoenas for depositions and initial summonses will still need to be served via process server. If the document was typically served via U.S.Mail, then it will now be served via email to all attorneys and any pro se parties who opt in to email service. If the document was typically served via process server, then it will continue to be served via process server.
With respect to document production, either Compliance with Request for Copies or Response to a Request to Produce, does this mean that the documents are also sent via email, or just the pleading?
The consensus is that the Notice of Compliance or the Response to a Request for Production is served via email. The actual document production does not have to be served by email. You can still produce it via paper, on disc, etc.
How would one prove, if needed, that the e-mail sent was, in fact, delivered to and received by the recipient? What if the recipient claims he or she never received it?
Hi Craig. Thanks for commenting.
It’s really no different than with service via U.S. Mail. There is a presumption of delivery once it is mailed, it doesn’t stop the recipient from claiming he didn’t receive it. If there is a concern about the recipient claiming he didn’t receive it, you can still serve by other means such as hand delivery or fax, in addition to serving via email.
If you get one of the “mailer-daemon” messages saying the email wasn’t delivered, then you need to check the email address and resend it to the correct address. If that happens, it is prudent to also serve it via hand delivery or fax.
Hi Craig. I forgot to add something. If you have someone on the other side of a case who habitually does not receive things when it’s convenient, you could ask them to confirm receipt of the pleading. When they don’t respond (because that’s their nature), call their office to confirm receipt and make a note in your file. If necessary, send copies of the emailed pleading to the attorney’s assistant and then confirm hat the assistant received it.
Do counterclaims still require personal service?