Email Service of Pleadings
A Growing Trend

by Troy Pickard
YLS Futures Committee member
 
Over the last 100 years, modes of business communication have evolved dramatically. Technological improvements have made correspondence and document exchange more reliable, more secure, and almost infinitely faster. Most legal communities, Oregon's included, have typically been slow to adopt new communication methods for the purpose of ORCP 9 service. Now, a growing number of jurisdictions are amending their civil procedure rules to allow for, or even require, service of pleadings via email. As for Oregon, the question is not whether it will join states like Florida; the question is "when?"

Email is indisputably ubiquitous in both business and social communication. Billions of business emails are sent every single day, and more than 80% of professionals say they use email as their primary business communication tool. Whereas every letter sent through the mail costs 46 cents and needs a piece of paper and a printer, emails are free to send and need no paper, making them central to the idea of a paperless office. Faxes still need paper (often special paper) and are now widely considered an inefficient anachronism. And at many firms, small and large, most important documents are now scanned and digitized after receipt. Email allows the recipient to cut out that step. But presently, mail and fax are both embraced by the Oregon Rules of Civil Procedure as legitimate methods of serving documents while email under ORCP 9 G is in fact a prohibited method of service, unless the parties not only make a specific written agreement about email service, but also email a response acknowledging receipt each time they receive a pleading or filing via email.
 
The fact that Oregon and many other jurisdictions have not  yet adopted email service as routine is not surprising, when one considers the historical adoption of new communication methods for service of pleadings. Telegraphs had been in widespread use since the 1830s, but Oregon's rules of civil procedure did not allow for telegraph service until 1952, over 100 years later. The ORCP continued to allow telegraph service of pleadings until 2007, a year after Western Union closed down its telegraph service altogether.
 
Even though fax machines were widely adopted by the business community in the late 1960s and early 1970s, the ORCP did not allow fax service until 1991. Instead of a 100-year wait, practitioners had a delay of only about 25 years. The current ORCP still allow service via "telephone facsimile communication device."
 
And finally, email. Although many Oregonians were using email for all sorts of communications in the late 1990s, the ORCP did not mention email service until 2007, when it enacted an almost-identical version of the current rule.

While history may suggest that Oregon will adopt email service sooner or later, other jurisdictions have already beaten Oregon to the punch. Since mid-2012, Florida's rules not only allow email service, but actually make it mandatory. In Florida, email service is treated as service by mail for timing purposes, giving recipients even more time to respond than they might have with regular mail. The rule requires specific wording in the email's subject line, enabling recipients to ensure that emailed pleadings don't wind up in a spam folder;  any modern email program can use a filter to ensure that no emails with particular wording ever get sent to a spam folder. The rule also requires that the emailed document be a PDF, a universally-accepted format for business documents.

Florida's rule provides an escape clause for attorneys who can demonstrate to the court that they have no email address and lack internet access at their office. This provision highlights the contrast between Florida's rule and Oregon's: email service is automatic and Florida lawyers can only opt-out under limited circumstances, whereas in Oregon, email service is generally prohibited unless lawyers specifically opt-in.

Florida has attempted to modify their service rules to reflect the reality about email, while creating safeguards to prevent abuse and mistakes that might scare some practitioners away from email service. In light of Oregon's historical trend of embracing new communication technologies for service purposes, even if it does not happen in 2013, email service is likely coming soon.