Practice Points with Mark Scruggs

Service by email? Ugh!

If you are like me, you overlook important emails often. It’s understandable; most of them don’t need to be read anyway. Other times, essential emails go directly to my spam folder, and I don’t see them for days because I’m not diligent about checking my spam filter. In my work, overlooking an email is usually not fatal. For a practicing lawyer like you, not so much.

On October 1, 2020, Rule 5 of the North Carolina Rules of Civil Procedure was amended to allow service by email upon the party’s attorney of record of all pleadings subsequent to the original complaint and other papers required or permitted to be served. Rule 5(b)(1)a. This includes orders, discovery, motions, notices of hearing, and the like. The email must be sent to an email address of record with the court in the case. Presumably, if the lawyer has included their email address on any pleading in the case, that will suffice. In addition, service by email must be directed to the lawyer, not a staff member. And it must be sent by 5:00 PM EST on a regular business day. If sent after 5:00 PM, it will be deemed to have been sent on the next business day. The lawyer does not have to specifically consent in writing to being served by email, as is the case with a party. Rule 5(b)(2)c. The certificate of service must show the email address of the lawyer so served in that manner. Importantly, no extra three days are added to the time prescribed for taking action like there is with service by mail. 

We had a situation recently where, for good reasons, our insured overlooked a notice of hearing on a motion that was served on him by email. For one, the email did not come from opposing counsel, but from opposing counsel’s paralegal. Our insured was not familiar with that person. Our insured was not present at the hearing, and the court ruled against the client. 

Another potential pitfall is the ephemeral nature of email. Folks change email addresses seemingly as often as they change their socks. Litigation can last for years. One might forget to update their current email address on record in the case. 

The takeaway is to treat your daily email as seriously as you treat your regular mail. A smoking gun may be hiding in your email along with the multitudinous unimportant ones. 

Finally, hope is on the horizon. The amendment to Rule 5 paves the way for expansion of the state’s electronic filing and case management system, which is in the pilot program stage in some localities now.