United States: 3-Day-Rule Eliminated For E-Service And Other E-Filing Rules Amendments

Last Updated: January 31 2017
Article by Kelly Curtis

The New Year brought with it many new rule changes for federal and California courts, including in the area of electronic service and filing. A few key rules regarding requirements for electronic paperwork and service are summarized below.

A major change was made regarding electronic filing in federal courts with the amendments to Federal Rule of Civil Procedure 6(d) and Federal Rule of Appellate Procedure 26. Formerly, the deadline to act after being served where service was made by mail, electronic means, or other means consented to, was extended by three days. Thus, e-service used to extend the time to act by three days under both the F.R.C.P. and the F.R.A.P. Effective December 1, 2016, Rule 6(d) and Rule 26 were amended to remove service by electronic means from the modes of service that provide three added days to act after being served. Federal Rules of Civil Procedure, 2016-2017 Amendments; Federal Rules of Appellate Procedure, Amendments, Effective December 1, 2016. In amending Rule 6(d), the Committee observed that when the change to allow three additional days for service by electronic means was enacted, there were concerns that electronic transmission of documents may be delayed, or that incompatible systems might make it difficult or impossible to open attachments. Amendments to the Federal Rules of Civil Procedure, Committee Notes. As advances in technology have alleviated those concerns and made electronic transmission of documents nearly instantaneous, the three-day extension has become unnecessary. Further, the Committee noted that adding three days at the end of "day-of-the-week" counting periods had made calendaring overly complicated and increased complication by invoking provisions that apply when the last day falls on a weekend or holiday. For these reasons, the federal rules no longer allow for the addition of three days to the calculation of time to act when electronically served.

Note that Civil Local Rule 7-3 in the Northern District of California, which previously extended by three days the deadline to file oppositions and replies where the related motions or oppositions were not filed and served through the court's ECF system, was also amended effective December 19, 2016 by deleting this provision. Oppositions must now be filed and served not more than 14 days after the motion was filed, and replies must be filed and served not more than 7 days after the opposition was filed, without exception. Civil Local Rule 7-3 Revised.

For a complete list of amendments to the federal rules of practice and procedure effective December 1, 2016, please refer to the United States Courts website.

Effective January 1, 2017, the California Rules of Court place additional requirements on the formatting and accessibility of electronically filed documents in California courts. First, when a document is filed electronically, it must be text searchable, so long as it is economically feasible to do so, and so long as it does not impair the document's image. "Economically feasible" is defined to mean that it does not require more than the application of standard, commercially available optical character recognition software. CRC Rule 2.256, October Amendments, Effective January 1, 2017. Second, unless submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit. CRC Rule 3.1110, October Amendments, Effective January 1, 2017. The Advisory Committee noted that current software programs that allow users to apply electronic bookmarks to electronic documents are available for free.

Relatedly, the Judicial Council acknowledged issues with formatting PDF documents. Because converting a document from word processing software to PDF may result in an inadvertent change in font size, the clerk of the court now cannot reject a paper solely on the ground that the PDF document's font size is not exactly the point size required by the rules. CRC Rule 2.118, October Amendments, Effective January 1, 2017.

Furthermore, the California Rules of Court no longer require proofs of electronic service to state that the person making the service is not a party to the case; nor must proofs of electronic service include the time of service— only the date is required. CRC Rule 2.251, October Amendment, effective January 1, 2017.

In total, over 100 Rules of Court were amended effective January 1, 2017. To see a complete list of the amendments, the California Courts website provides links to the redlines of each set of rule amendments adopted by the Judicial Council here.

3-Day-Rule Eliminated For E-Service And Other E-Filing Rules Amendments

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