A Trap for the Unwary Federal Practitioner – No More “Three Extra Days” on E-Mail Service!

As of December 1, 2016, Federal Rule of Civil Procedure 6(d) will change such that there will no longer be three days added to the response time – IF the served document was served by electronic means.

The newly amended Rule 6(d) reads as follows:

6(d) Additional Time After Certain Kinds of Service. When a party may or must act within a specified time after being served and service is made under Rule 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to), 3 days are added after the period would otherwise expire under Rule 6(a).

This amendment removed Federal Rule 5(b)(2)(E) from that list.  Rule 5(b)(2)(E) has not changed and states as follows:

(E) sending it by electronic means if the person consented in writing—in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served

Do not forget that service by e-mail under the Federal Rules still has to be CONSENTED TO IN WRITING as set out in subsection E above. Most Federal practitioners simply serve and receive service electronically without bothering to get a written agreement – because that is allowed under the Texas Rules of Civil Procedure, Rule 21a(b)(3) (through an electronic service provider) – and because that is simply the way people (including lawyers) communicate in the 21st century.

So, the take away is that once a Federal Civil Practitioner agrees to service by e-mail, he or she no longer has the three-day extension to respond.  Be careful out there

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