E-Filing and E-Service: When Convenience Becomes a Trap

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Although trailing the early adopters, such as the federal courts, the Florida judicial system has long embraced the use of technology having adopted rules authorizing an early form of electronic transmission for documents filed with the courts more than three decades ago. See In re Fla. Rules of Jud. Admin., 372 So.2d 449, 463 (Fla.1979). In 2012, the Supreme Court adopted rules to implement mandatory electronic service procedures, followed by mandatory electronic filing procedures, for all documents filed in Florida’s courts. In re Amendments to Florida Rules of Civil Procedure, Florida Rules of Judicial Admin., Florida Rules of Criminal Procedure, Florida Probate Rules, Florida Small Claims Rules, Florida Rules of Juvenile Procedure, Florida Rules of Appellate Procedure, & Florida Family Law Rules of Procedure–Elec. Filing, 102 So. 3d 451, 452 (Fla. 2012).

The days of stuffing envelopes and midnight runs to the general mail facility may be gone, but the convenience of serving and filing electronically carries its own challenges. Filing of court documents is now accomplished through the Florida Court E-Filing Portal which requires registration and, for the uninitiated, a fair amount of training. The documents themselves must meet new formatting requirements unheard of or unneeded before e-filing – such as a resolution of 300 dpi or a size limitation of 25 megabytes. Fla. R. Jud. Admin. 2.520; e Portal Document Submission Standards.

But the real traps are hidden where the eservice rules intersect with the ordinary Rules of Civil Procedure. Practitioners must take special caution that they have served in accordance with the new rules when certain time limits or rights are triggered by service. For example, the timeliness of a motion for attorneys’ fees is triggered by service, not filing. Fla. R. Civ. P. 1.525. Failure to serve correctly under the e-service rules may result in a denial of fees. Even more problematic is rehearing motions, also triggered by service. The litigant who expected that his appellate time was tolled by a properly filed 1.530 motion, may have a nasty surprise in store if it was not properly e-served within 15 days.

Improper service might happen if the sender accidentally serves the document by email to the wrong address. If an opposing party has designated addresses for service, the service email must be sent to those addresses – and all of those addresses – or service has not occurred. Fla. R. Jud. Admin. 2.516(b)(a)(A). It is not “service” to simply send a document to the email address an attorney may have listed on his or her firm’s website or even to the address listed at The Florida Bar if the attorney has designated a different service address.

From my experience, the e-service rule most misunderstood is when an attorney chooses to use the e-portal to serve his documents, rather than a separate email. While service by the portal would be sufficient, the filer must ensure that the portal will send the document to the recipients’ designated service addresses. When the Florida Supreme Court adopted the rule, it clearly stated the filer’s obligation to ensure that the portal would send to the designated service addresses:

The primary amendments to rule 2.516 establish the parameters of e-service through the Portal and advise that a filer has fully complied with the rule’s e-mail service requirement if a document is served through the Portal. The filer need not also serve the electronically filed document by e-mail. However, the filer of an electronic document must verify that the Portal uses the names and e-mail addresses provided by the parties.

In re Amendments to Florida Rules of Judicial Admin., 126 So. 3d 222, 223-24 (Fla. 2013) (emphasis added).

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Although the intended servee may use an email address to communicate with the portal, that address (to which the portal will default if not changed by the filer) is not likely to be the recipient’s designated service address. Not only would documents sent to this portal default address not comply with the technical requirements of service, the intended recipient may not monitor that box for outside communications and may have no actual notice of the attempted service.

But even actual notice may not be sufficient if the service email fails to meet all the requisites of the e-service rules. For example, in Matte v. Caplan, 140 So. 3d 686 (Fla. 4th DCA 2014), the Fourth District affirmed the denial of a motion for fees sought as a sanction pursuant to Fla. Stat. §57.105 because the email which served the motion did not strictly comply with Rule 2.516. Id. at 687. Specifically, the email did not: (1) provide a PDF copy of the motion or a link to the motion on a website maintained by the clerk; (2) contain, in the subject line in all capital letters, the words “SERVICE OF COURT DOCUMENT,” followed by the case number; and (3) contain, in the body of the email, the case number, name of the initial party of each side, title of each document served, and the sender’s name and telephone number. Id. at 688. The court held that §57.105 requires strict compliance with the service statute before fees may be awarded – even though the recipient had received the email and had actual notice of the motion.

Practitioners, therefore, would be doing themselves a great service, by learning and training their staff in the intricacies of serving (and filing) electronically. Amanda Lundergan

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