Can a Lawyer Refuse Service of Discovery by Email?
“I don’t know what the rules say, but … that’s just dumb.”
I recently had the rare displeasure of being completely dumbfounded by statements made by opposing counsel in a letter. Two months prior to receiving the letter, we had filed a notice of service of discovery requests that we were propounding to the Plaintiff. We then emailed the notice and the discovery requests to opposing counsel.
Two months later, opposing counsel sent us a letter advising us that he had received our notice of discovery but had not received our discovery requests because his office does not accept service of discovery by email. When I was first told about this by co-counsel, this is how the exchange went:
Me: What?! Screw him! That’s not his prerogative!
Co-Counsel: I think he actually can. I looked into it.
Me: No, he can’t. [Emphatically]. I don’t think. [Less Certainly]. That’s just dumb. I don’t know what the rules say, but that’s the whole point of electronic filing. I’m going to find out. I’ll let you know. This is dumb.
It’s moments like this that the nerd in me takes over, and I get giddy about digging into the rules of civil procedure. I’m going to go ahead and give you the answer to the question – of course, he can’t refuse service of discovery because we emailed it, rather than snail-mailed it. You know why? Because that’s just dumb! Also the rules say so.
So What Do the Rules Say about Service of Discovery by Email?
Rule 33 of the Alabama Rules of Civil Procedure requires that Interrogatories be served on a party but doesn’t state how this can or cannot be accomplished. Alabama Rule of Civil Procedure 34 likewise requires Requests for Production to be served upon a party, but with no indication of the method to be used. The same with Requests for Admission under Rule 36.
Having exhausted the discovery rules, I went all the way back to Rule 5(b) of the Alabama Rules of Civil Procedure … where I struck gold!
If the attorney for the party to be served or the party to be served is a registered user of the electronic-filing system as provided for by order or rules of the Supreme Court of Alabama, service may be made by electronic transmittal in accordance therewith. Service by electronic means in compliance with those orders and rules shall be complete on transmission of the electronic document.
So the only caveat was whether opposing counsel had opted to use the statewide electronic-filing system. Of course, he participates in electronic filing, because only a self-loathing, self-defeating Luddite would choose to forego the system and have to send someone down to the courthouse every time something needs to be filed. Then again, opposing counsel did still use an aol.com email address, so that’s barely email.
So the short answer is: If opposing counsel participates in the electronic-filing system (and they do, all of them), then they can be served by email with discovery requests, discovery responses, pleadings, motions, or whatever other documents are filed with the court. And if they attempt to refuse? Well, that’s not their prerogative, so just ignore that nonsense and go about your merry way! They can explain their position to the court later.
[NOTE: This article only applies to state court practice in Alabama. It does not apply to federal practice. Federal Rule of Civil Procedure 5 states that service of discovery or other documents by email requires written consent of the parties.]
Artwork by Christian.