In the days before computers, we used to call a helpful piece of advice a tip, a practice pointer or a shortcut. In today’s jargon, a strategy for doing something in a more efficient way is often called a “life hack,” or simply a “hack.”

A small change is tucked into this year’s updates to the Tennessee Rules of Civil Procedure — a hack, you could say — that could provide a big boost in efficiency in how lawyers, particularly in rural areas of the state, handle a routine aspect of practicing law: serving opposing counsel or parties.

Effective July 1, 2023, lawyers may now easily serve any document on opposing counsel via email. At first blush, this may not sound like a big change to some lawyers (like those who live in metropolitan areas or do a lot of federal court work), but a little history about service of legal documents in Tennessee highlights the significance of this development.

I began practicing in 2006 and, like many lawyers, my legal assistant taught me how to properly serve pleadings, motions and notices because law schools never bother with teaching such pedestrian tasks.

The original document (signed in blue or black ink), was mailed to the court for filing with a cover letter. A copy of the motion was mailed to the judge with a separate cover letter and a proposed order, if the motion was uncontested. Another copy of the motion, together with copies of the letters to the clerk and the judge, were mailed to each opposing lawyer.

Everything was then usually put into 9x12 envelopes and a letter-sized envelope with the recipient’s address was taped to the front. A second envelope, self-addressed and stamped, was often included in the package to the clerk so that a “filed” stamped copy could be returned for the office’s files.

In a simple case with plaintiff’s counsel and two defense counsel, a three-page uncontested motion with a one-page order would generate no less than 22 pages of paper. More complex motions or cases could eat up a ream of paper in no time.

Federal court cases provided a stark contrast. After logging into the case filing website, uploading a PDF of a notice of appearance and clicking a button, a few seconds later an email arrived with a “filed” stamped copy. Even better, the email showed that the document had been served on opposing counsel. The environmentalist in me was thrilled at how it had not generated any paper. The rest of me was thrilled with not having to think about originals, copies, envelopes and postage.

Anyone who practices in the federal courts is familiar with these emails from the court’s Case Management/Electronic Case Files (CM/ECF) system. The emails notify them that their document has been filed or that their adversary has filed a document. All parties to the case receive notice and many lawyers include multiple staff or lawyers on the service list to ensure a notice does not get overlooked. Electronic service of this type has been around for decades. The federal court system began implementing ECF in the district courts in 2002 and the appellate courts in 2005.¹

Tennessee has been slower to adapt to technology. In 2003, the Tennessee Supreme Court created Rule 5A of the Tennessee Rules of Civil Procedure, which allowed for the filing of certain documents via fax.² The court also amended Rule 5 to allow a party to serve any document by fax if it was filed by fax.³ Rule 5A, however, excluded certain documents, including a complaint, a will or a notice of appeal, and it limited the filing to 10 pages or less.⁴ As a practical matter, this limited the types of motions that could be filed. It also did not address one of the biggest paper creators in litigation — discovery responses. In 2017, the Court amended Rule 5A to allow filings up to 50 pages, but with a service charge of $5, plus $1 for each additional page filed; the rule still was not a convenient way to file and serve opposing counsel.⁵

In 2009, the Court amended Rule 5, again, effective July 1, 2010, to allow service by email . . . sort of.⁶ The rule allowed the attorney to send the document in a PDF format if the email included language in the subject line designed to alert the sender that it was being served by email. Onerous additional requirements, however, greatly reduced to utility of the rule. On the same date the email was sent, the rule also required the sender to send a certificate via mail, fax or hand delivery, informing the recipient that they had been served a document via email.

The notice had to include the following:

• The caption of the case;
• The docket number;
• The title of the document;
• The number of pages in the document;
• The sender’s name, address, telephone number and email address;
• The email address of each recipient; and
• The date and time of transmission.⁷

The court further required that the notice state something along the lines of “if you did not receive this document, please contact the sender immediately to receive an electronic or physical copy of this document.”⁸ Finally, if that were not enough, the certificate had to be served on all counsel of record. ⁹

Over the 13 years the rule was in effect, I used it maybe two or three dozen times, most often to email voluminous discovery responses and save paper, or more recently, send digital files. Opposing counsel in cases during that time utilized it far less. The hassle of preparing the certificate and having to fax or mail it to all counsel simply outweighed the utility in most instances.

After the 2010 changes, some larger counties began implementing electronic filing systems. The Shelby County Chancery and Circuit Courts, for example, started the first efiling system in the state in June 2012.¹⁰ As part of the 2013 Workers’ Compensation Reform Act, the newly created Court of Workers’ Compensation began handling filing, service and even service of process via email. The Davidson County Chancery Court came online in 2017.¹¹ The Tennessee appellate courts began accepting electronic filing in 20181.¹² As of 2020, only five of Tennessee’s 95 counties had electronic filing in at least one court. Interestingly, too, while these courts had electronic filing, service thrwough the court’s ECF system was not approved until 2020.¹³ Perhaps spurred by the COVID-19 pandemic, at the writing of this article, courts in 15 counties now have electronic filing.¹⁴

This is not to say that service by email in courts without electronic filing has not been occurring by consent.¹⁵ Before the changes this year, however, lawyers practicing in no less than 80 counties across the state could not serve documents via email in compliance with Rule 5 without following the service with some sort of paper confirmation. The Advisory Commission Comments to the 2023 change specifically note the elimination of this antiquated certificate requirement. The change has the potential to make service in many rural counties practical, efficient, proper and perhaps more in line with what may often be already happening.

The revised Rule 5 now also allows both lawyers and pro se parties to serve, and be served, documents via email. Previously, the rule only allowed service on an attorney.¹⁶   

Under the rule now in effect, it is difficult to conceive of a reason why someone would not serve a copy of a pleading, motion, notice or discovery package via email. It is fast, easy to include multiple lawyers or staff, and a copy of the email sent should provide proof “satisfactory to the court” to establish service pursuant to Tennessee Rule of Civil Procedure 5.03.

When the Tennessee Supreme Court authorized electronic filing in 2010 pursuant to Rule 5B, the Advisory Commission stated that it envisioned that all Tennessee courts would adopt electronic filing, “in the not-too-distant future.”¹⁷ Unfortunately, that has not proven to be accurate in much of the state.

Thanks to a new “hack” under Rule 5.02, however, while some lawyers may still need to drop a letter in the mail or walk to the courthouse to file certain documents, lawyers across Tennessee can now save a stamp (and perhaps a ream of paper) and easily serve opposing counsel via email. |||

CHUCK HOLLIDAY is an associate with the Law Offices of Jeffrey A. Garrety P.C. in Jackson. He represents the injured and the sick in personal injury, workers’ compensation and social security cases.

NOTES

1. United Stated Courts. “FAQs: Case Management/Electronic Case Files.” www.uscourts.gov/court-records/electronic-filing-cmecf/faqs-case-management-electronic-case-files-cmecf (last visited Sept. 19, 2023).
2. In re: Amendments to Tennessee Rules of Civil Procedure. Dec. 10, 2003. www.tncourts.gov/sites/default/files/sc_rule_of_civ_proc_ord.pdf
3. Id.
4. Id.
5. Tenn. R. Civ. P. 5A.02 “Advisory Committee Comment [2017].” www.tncourts.gov/rules/rules-civil-procedure/5a02 (last visited Sept. 19, 2023).
6. In re: Amendments to Tennessee Rules of Civil Procedure. July 1, 2010. www.tncourts.gov/sites/default/files/order-trcivpamendments.pdf
7. Id.
8. Id.
9. Id.
10. Shelby County Government. E-Filing in Circuit and Chancery Courts. www.shelbycountytn.gov/2524/About-E-Filing (last visited Sept. 19, 2023).
11. Tennessee Courts. “E-Filing in Tennessee.” www.tncourts.gov/sites/default/files/docs/e-filing_in_tennessee.pdf (last visited Sept. 19, 2023).
12. In re: Amendment to Tennessee Supreme Court Rule 46. July 1, 2022. www.tncourts.gov/sites/default/files/rule46.ordappx.pdf.
13. Tenn. R. Civ. P. 5B. “Advisory Commission Comment [2020].” www.tncourts.gov/rules/rules-civil-procedure/5b.
14. Tennessee Courts. www.tncourts.gov/E-Filing (last visited Sept. 19, 2023).
15. See Koblitz v. State, 2021 Tenn. App. LEXIS 471 (Tenn. Ct. App. Nov. 29, 2021) (noting counsel in the case had reached a written agreement to accept service via email alone).
16. See Sykes v. Sykes, 647 S.W.3d 596, 606 (Tenn. Ct. App. 2021) (finding that service of order by email on pro se husband ineffective).
17. Tenn. R. Civ. P. 5B, Advisory Commission Comment [2010], www.tncourts.gov/rules/rules-civil-procedure/5b.