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Drafting Effective E-Service Orders

19 April 2019|Litigation

By Wayne Nitti

When it comes to an electronic service order, less is never more. Too often, attorneys—having agreed on a third-party e-service vendor—submit to the Court bare-bones orders that fall short of clarifying the respective roles and responsibilities of the parties, their counsel, and the provider. While e-service orders of just a few sentences are not uncommon and might seem expedient, in the long run they can sow confusion, lead to squabbling among lawyers, and even interfere with the smooth administration of the case. That’s why Case Anywhere provides on its site free and downloadable model orders that address e-service practice and administration from setup to termination. Our model orders and inserts include clear provisions that specify e-service registration requirements, the scope of documents affected, who will have access on what terms, and more.

With over a decade of experience managing cases online, we’ve seen first-hand how e-service orders play out across proceedings of all shapes and sizes—from smaller disputes among a handful of parties, to massive toxic torts involving thousands of plaintiffs. We’re often brought in soon after a complaint is filed, and create for every case an individual online litigation hub which includes an e-service module. Our professional managers remain involved until the case ends as the result of a judgment, dismissal, or an exhausted appeal. Along the way, we’ve learned that the most effective e-service orders include the following:

1. Specific Registration Requirements

  • Strong e-service orders include registration deadlines, and explicitly require all counsel of record to sign up, including attorneys and firms that enter a case after an order is executed. Well-drafted provisions also identify the process for registration, which typically begins with the transmission of a comprehensive service list to the vendor by one of the parties. We suggest including language directing each law firm to contact us directly if particular support staff and administrators also require site access.
  • The order should state that all affected parties have a responsibility to provide accurate (and up -to-date) e-mails to the e-service provider and to ensure that emails from the vendor will be accepted. In addition to providing a comprehensive service list, we suggest that the order also states that each law firm should provide individual contact information for support staff and administrators it intends to access the site.
  • We recommend a specific provision directing service of the e-service order on any new counsel. Such a provision facilitates the efficient addition of new firms to the site.
  • In some large and complex cases, we’ve seen astute lead counsel integrate “gatekeeper provisions” into their e-service orders. These provisions require one or more lead counsel to approve the addition of new firms. Inclusion of this additional requirement is generally found in cases with protective orders which must be signed before granting access.
  • If other cases are later related to the litigation, we propose drafting an additional e-service order for any related matter. The separate order can be comprehensive in its provisions or simply mandate that the related case is subject to the e-service order entered in the underlying matter.

2. Well-Defined Set of Authorized Users

  • When using Case Anywhere as an e-service and legal case management provider, we suggest that lawyers specify in their orders who may access the online file.
  • The user set can easily be extended beyond required registrants. As desired, counsel have the option to designate as authorized users the Court and court-appointed officers such as special masters or referees, as well as law firm professional staff, mediators, experts, consultants, parties, and others. 

3. Clear Scope of Documents to be Served

  • To eliminate any ambiguity, we find it’s best when e-service orders specify which documents must be served exclusively via our system.
  • The subset of exclusive e-service documents typically includes all filed documents, excepting those filed under seal or subject to personal service per applicable code of civil procedure.
  • Discovery requests and responses are usually designated for service through the provider, although counsel at times makes separate arrangements for service of voluminous document productions by other means. ESI discovery, documents not in electronic form, and oversized documents are generally not handled by the e-service provider.
  • Counsel often upload correspondence via the system for convenience, and we recommend including a reference in the e-service order permitting this practice.

4. Articulated Fee Allocations

  • Typically, each party or firm is responsible for its own fees related to e-service, and the order should reflect that understanding.
  • If alternative payment arrangements have been made, then the order should specifically say so.

5. Modified Service Requirements

  • If desired, the parties can stipulate in their e-service orders to certain modifications of the code.
  • Such modifications might include an agreement among counsel to alter time-of-day service deadlines and the time for serving responsive documents.
  • A requirement of personal service for certain documents can also be modified by an agreement, referenced in the order, that e-service via the provider’s system suffices.

6. Bases for Termination of Service

  • A well-conceived e-service order specifies the grounds for closing the case site. Conclusion should be tied to judgment, voluntary or Court-directed dismissal of all parties, or instruction of the court.  The parties might want to specify that the site should remain active during the appeal period.
  • The e-service order should address the terms under which attorneys and firms can seek to be removed while a case remains active. We recommend conclusion of access for such firms when their clients have been dismissed, if the firms’ attorneys no longer represent any parties (substitution, disassociation), or because a final judgment as to their clients has been entered.

Our e-service module forms the cornerstone of the Case Anywhere system, and our team of professionals has wide-ranging expertise in advising counsel on drafting e-service provisions. Simplify your next e-service experience by downloading one of our model orders. If you have particular language you want to include in a proposed e-service order, we are happy to review it with you. Contact us today to get started.