Last month Michelle and I presented Service of Process 101: Personal service, eService & more, our first webinar in our Sharpen your Legal Skills webinar series. We had a wonderful turnout with so many good questions from our audience.
While we responded to as many as possible during the webinar and to others personally after the presentation, we wanted to share some of the most-asked questions with everyone.
And as we promised: here are our answers to the top questions you asked about eService.
#1: Who gets eServed?
A good starting point is to remember that eService is never used in case initiations, where each party in the case needs to be personally served. eService is only ever used for subsequent filings, where the parties are already aware of the ongoing case and the court already has jurisdiction over them.
“Do the rules mandate that everyone in defense firm that is on service contact list be served or only the attorneys?”
Typically, only counsel is required to be eServed. If the court has mandatory eFiling, then eService is mandatory (CRC 2.253) so consent is required. It is just how to consent to eService that has changed as we see in CRC 2.251.
Also, CCP 1010.6(a)(2) speaks to cases filed 12-31-18 and before, and those filed 1-1-19 and after. Before 1-1-19, the filer agreed to be eServed and did so just by the act of eFiling. After 1-1-19, affirmative consent is needed.
Learn more about the 2019 changes to California state and local rules of court.
“If we are eServing the opposing attorney, do we also need to eServe the client they represent?”
No, you do not, eServing the representation is sufficient.
“I work in Probate where we have a lot of elderly clients that do not have email or computer access. How would it be possible for them to accept eService?”
As the attorney, you may accept eService on their behalf.
#2: Responding to an eServe
Some of your questions compared service by mail to eService, and focused on the timelines given for responses. Service by mail is another topic entirely, as CCP 415.30 authorizes a very limited form of service of complaint and summons by mail, with specific guidelines.
So, remember: eService is never used for service of complaint and summons.
In general, methods like faxing, mailing, or FedExing that counsels might use in exchanging subsequent filed documents can be replaced by eService and we highlighted the rule for response time.
“We still have to add two days for e-service correct?”
When being served by mail, parties have an additional 5 calendar days to respond, but with eService parties have an additional 2 court days (CCP 1010.6 B).
CCP 1010.6 (B)
Any period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days, but the extension shall not apply to extend the time for filing any of the following:
- A notice of intention to move for new trial.
- A notice of intention to move to vacate judgment under Section 663a.
- A notice of appeal.
#3: Discovery
Discovery documents can be large and cumbersome, and hard to track using more traditional methods. A few of you immediately saw the possibilities of eService to help manage the process.
“Can you use eService for discovery documents if they are not eFiled with the court?”
Yes! Discovery along with correspondence. You can always place a stand alone eService using One Legal. Here is a link on How to order a stand alone eService.
This option helps you to better track receipt of the documents and improve management of lengthy files.
“Is discovery mandatory eService if the case is mandatory eFiling as well?”
Yes, if eFiling is mandatory, then eService is mandatory. You can eServe discovery along with correspondence.
Learn more about how the benefits of eService go beyond email.
#4: eService lists, email addresses, and more
Several of your questions addressed the basic nuts and bolts of the eService process, starting off with one common experience we’ve all encountered when emailing in general.
“If an incorrect email address is provided to One Legal for eService purposes – how do we receive notification of the wrong email address? Is there any way of tracking that?”
Your EFSP may not receive notifications of incorrect email addresses. If you used an email address that was provided to you, you still have done your due diligence. If you notice that the party you have eServed through One Legal doesn’t view the documents, you may want to test their email address from your own email client to see if you receive a send failure notice.
“Is the eService list visible to everyone involved in the case? Or just for our view?”
It is visible and will look the same to everyone using One Legal to eFile in that particular case.
If they are using another EFSP it may look different. Also, the court must make it available if requested. Please see below.
Rule 2.251 (e) Maintenance of electronic service lists
A court that permits or requires electronic filing in a case must maintain and make available electronically to the parties and other persons in the case an electronic service list that contains the parties’ or other persons’ current electronic service addresses, as provided by the parties or other persons that have filed electronically in the case.
“Is the Judicial Council considering proper language to use when eService is made by the EFSP, instead of via email by the attorney/staff?”
Remember: your EFSP doesn’t effect the service. The party or attorney does by either email (electronic transmission) or by using an EFSP (electronic notification). In either case, the law firm has done the service and email or an EFSP is just the method used.
The Judicial Council form POS-050 works fine for either method.
Compare to service by mail: If service is effected by mail the post office doesn’t provide a proof of service, the party/attorney does.
#5: Consent to eService
Without a doubt, questions focusing consent to eService topped the list and you gave us some unique and challenging scenarios to address:
“Is verbal confirmation between counsel/paralegals sufficient to implement eService within any case?”
Not anymore. Per CCP 1010.6(a)(2), it needs to be stipulated, or the parties need to agree to the Terms of Service agreement from their EFSP.
“Can an attorney rescind or refuse eService in a case that is mandatory eFiling?”
If the court has mandatory eFiling, then eService is mandatory (CRC 2.253) so they do have to participate in eService. It’s only how they consent that has changed, that consent is still required.
“In our example, the case was filed before 12/31/2018 and the party just let their attorney go. If that party’s attorney had consented to eService, is the party bound by that consent after becoming self-represented?”
That’s a good one! But as Rule 8.71 (b) states self-represented parties are exempt from the requirement to file documents electronically. If the party is now self-represented, you would need their consent before using eService.
As I responded to each of these questions, I also cited the guiding rule and procedure for eService that I’ll use to close this blog. If you have other questions come up around eService, I encourage you to review these rules and requirements to confirm that you are adhering to the processes moving forward.
- A party or other person may manifest affirmative consent under (B) by:
- Agreeing to the terms of service agreement with an electronic filing service provider, which clearly states that agreement constitutes consent to receive electronic service electronically; or
- Filing Consent to Electronic Service and Notice of Electronic Service Address (form EFS-005-CV).
- A party or other person that has consented to electronic service under (1) and has used an electronic filing service provider to serve and file documents in a case consents to service on that electronic filing service provider as the designated agent for service for the party or other person in the case, until such time as the party or other person designates a different agent for service.
Feel free to add additional questions in the comments below!
