TBA Law Blog

Posted by: Brandt McMillan on Feb 22, 2011

Journal Issue Date: Feb 2011

Journal Name: February 2011 - Vol. 47, No. 2

Under Revised Tenn. R.Civ. P. Rule 5

As of July 1, 2010, Rule 5.02 of the Tennessee Rules of Civil Procedure has been amended so that emailing an Adobe PDF version of a pleading or other document required to be served under Rule 5.01 is an effective means of service … almost.

When my new 2010 version of the Tennessee Rules of Civil Procedure finally arrived late this summer, I did what I expect many closet-civil-procedure-nerd litigators across Tennessee did: I closed the door to my office and proceeded to quietly geek out. I secretly celebrated that we had made the full cycle back to blue covers. Yes! It’s been a long four years since 2006. I might or might not have done a fist pump. Next, I started scanning the pages for bracketed text reading, “[Amended effective … July 1, 2010].” The first newly revised rule was Rule 5.02, Service; How Made. That’s when it really got exciting.

The first sentence of newly crafted Rule 5.02(2)(a) was a shock: “Service upon any attorney may also be made by sending him or her the document in Adobe PDF format to the attorney’s email address, which shall be promptly furnished on request.” Tenn. R. Civ. P. 5.01(2)(a). Boom! Service by email is now effective. I definitely did a fist pump. I might have done two.

As an attorney who spends at least 85 percent of his office time in front of a computer, the fact that the rules of civil procedure were officially recognizing the most convenient method of written communication available to human beings was big. It was huge. Most attorneys I have worked with already send most pleadings back and forth through email anyway, with the aggravating necessity of adding, “a hard copy follows by mail.” Then, in order for service of the document to be effective under the rules, we print, sign, and put postage on another copy of the document before putting it in the mail to all counsel of record. Which amounts to resending them a copy of a document that they already received, and have likely already printed, read, and maybe have even started drafting a response to before the snail-mailed “service copy” even arrives and gets tucked in the file. Based on the first sentence of the revised rule, I thought those days were gone and email was going to be a fully sanctioned means of serving opposing counsel with pleadings, discovery, motions, etc. Attach the document, click “send,” and service would be complete. That’s nice.

As I continued reading, I noticed the second sentence of the new rule contains a practical specification clearly designed to alert the attorney receiving the email that it was carrying a pleading which was being officially served on him or her. It states, “[T]he sender shall include language in the subject line designed to alert the recipient that a document is being served under this rule.” What a smart requirement; it will help distinguish these important emails from the daily deluge of inconsequence and guard against the less scrupulous among us from trying to slip a pleading into your inbox unnoticed. What a great update to the TRCP.

Not so fast. Unfortunately, the next four sentences of the new rule effectively negate its purpose. In its somewhat tedious entirety, Rule 5.02(2)(a) reads:

Service upon any attorney may also be made by sending him or her the document in Adobe PDF format to the attorney’s email address, which shall be promptly furnished on request. The sender shall include language in the subject line designed to alert the recipient that a document is being served under this rule. On the date that a document served under this rule is electronically sent to an attorney, the sender shall send by mail, facsimile or hand-delivery a certificate that advises that a document has been transmitted electronically. The certificate shall state the caption of the action; the trial court file number; the title of the transmitted document; the number of pages of the transmitted document (including all exhibits thereto); the sender’s name, address, telephone number and electronic mail address; the electronic mail address of each recipient; and the date and time of the transmission. The certificate shall also include words to this effect: “If you did not receive this document, please contact the sender immediately to receive an electronic or physical copy of this document.” The certificate shall be sent to all counsel of record.
— Tenn. R. Civ. P. 5.02(2)(a).

As you can see, the new rule also requires that, anytime you serve a document by email, you must also send a certificate through the regular mail (or by facsimile, or via hand-delivery) which notifies the recipient of the email that they should have received the email. The certificate has to include the following information:

(1) the caption of the action;
(2) the trial court file number;
(3) the title and number of pages of the transmitted document (including exhibits);
(4) the sender’s name, address, telephone number and email address;
(5) the email address of each recipient;
(6) the date and time of the transmission; and
(7) specific instructions to contact you if they did not get the email.

I was crestfallen. Having to draft and mail (or fax or courier) a separate certificate is not very convenient. In fact, by requiring the creation of an entirely new document in addition to the document you just tried to serve by email, the new rule actually increases the amount of work and paper required. I wish you could take back a fist pump.

Despite my not-so-mild disappointment, I resolved to give it a try. The next set of interrogatories and request for production of documents I drafted, I served by email. When I finished the document, I inserted my digital “federal court” signature, made it into a PDF with a click, attached it to an email, and shot it off to opposing counsel. Then, I went about the process of creating the certificate, which was almost entirely cutting and pasting, and not mentally taxing –– but it took time. It took more time than it would have taken if I had just printed out the interrogatories and put them in the mail.

I don’t have to tell you: time is everything.

A new rule allowing email to count as Rule 5 service should not add time to the process of getting pleadings out of the office; it should save time. To be blunt, the certificate requirement is aggravating and silly. The explanatory remarks regarding the certificate in the Advisory Commission Comment hint that someone on the commission agrees: “The mailing or hand delivery of a certificate was included out of concern, well-founded or not, that an email transmitting a document could be lost in cyberspace.” Tenn. R. Civ. P. 5.02, 2010 Advisory Commission Comment (emphasis added). I do not have any data to back it up, but I will wager that a document is as likely to be lost in the regular mail as it is in cyberspace.

The efficacy of the new rule is not totally killed by the certificate requirement. It will still be possible to email a pleading comprised of many pages in order to save on postage and paper. However, serving pleadings on other attorneys with email alone would be tremendously more convenient. Email service would free us from the USPS operating hours, from the always mounting expense of postage, and from slow, image-distorting fax machines that seem to always run out of ink or paper (or both) at the perfectly wrong moment. Working from home or the road would also become easier and more convenient. We would be more efficient. It would save time.

There is at least one more practical alternative to the certificate requirement. The rule could require that the recipient of the email carrying Rule 5 service reply and acknowledge receipt of the e-mail and attachments. That would actually be better than just mailing it, where you do not get any confirmation from the recipient unless you pay for certified mail. It would literally take less than 10 seconds to send the reply, and, if you don’t get the reply, you could send a follow up email. There will be a time-and-date-stamped, computer-generated record of the entire exchange.

Unfortunately, the new rule goes right to the brink of embracing modernity and then backs off, turns around, and runs to the familiar, warm buzz of the postage machine. Email is not a new and untried technology: it’s been around for more than a decade and is so convenient and reliable that it has quickly become widely enough used so as to be fairly called universal. Everyone emails. My grandmother emails.

I now realize that I am a year too late in voicing my thoughts on this amendment (the Advisory Commission on the Rules of Practice and Procedure presented this proposed amendment to the Tennessee Supreme Court in 2009, and the time period for public commentary cut off on Nov. 30, 2009). I wish I had been paying better attention. Hopefully however, the Advisory Commission will take this issue up again and eliminate the certificate requirement when pleadings are served by email. Please join me in urging the next Commission to take the plunge and make email service officially official.

Brandt McMillan BRANDT MCMILLAN lives in Nashville with his wife, Elizabeth. He practices at Farrar & Bates LLP, primarily representing local governments around middle Tennessee in the areas of governmental tort liability defense, civil rights defense, and employment law. Before entering private practice, he clerked for judges Alan E. Glenn and David H. Welles on the Tennessee Court of Criminal Appeals.