Deposition notices = junk mail?

Recently, it was revealed that the carbon footprint of junk mail is equivalent to 480,000 cars.  I reflected on this dispiriting fact while opening my office mail the other day.  Especially the bulging envelope with two deposition notices.  While there are steps you can take to reduce the volume of junk mail you receive it's hard for a devotee of paperless like me to ward of paper deposition notices.  Still, it is kind of ridiculous when you think about it.

The case that spawned the offending paper is based in federal court, which means that the notices aren't even filed in the court.  If they were required to be filed, they would have to be filed in electronic format and the service would be accomplished electronically.  If only lawyers knew how to scan print the documents to PDF and send them by email!

Well, actually, they should!  Again, because we're talking about a federal court case the lawyers are converting their pleadings to PDF when they file electronically.  So why aren't they sending the notices as PDF attachments to an email? Probably because they don't think the rules allow for it.  So, how about we amend the rules?  

But before we go off on a discussion about that, how about this idea:  How about if attorneys in federal court cases agree from the inception of a case that they'll accept service of deposition notices by email?  Or --better yet-- how about if we send the notices as calendar appointments which can quickly 'accepted' and moved into an electronic calendar?  Doesn't this make perfect sense?

I'll bet that it does to some attorneys, and not so much to many others.  Those that have monthly billing quotas are probably snorting at the mere suggestion of these notions.

Comments

[src]

Perhaps the CM/ECF system should be modified so that documents required to be exchanged between the parties like depo notices be sent to opposing counsel through the CM/ECF system, but without actually filing the document with the court. Of course, email isn't hard, but nobody's junk mail filters should filter CM/ECF notices.

[Charles Jannace]

I serve my Notices of Deposition by email (as well as other discovery devices and responses) and wait until someone objects. So far, no one has. Everyone seems to understand that this is where our profession is headed and the recipient cannot claim any prejudice.

[Jeff Mehalic]

Your suggestion makes perfect sense, but for an opposing viewpoint, when I sent a motion by email last week in a state court proceeding, the other party's lawyer told me that he would not consent to service by email "in this case or in any other case because it is just too unreliable."

I don't know what he does in federal court, when he doesn't have a choice.

[Celia C. Elwell, RP]

Not all attorneys agree that the rules allow service by fax or e-mail. Your suggestion is a good one, and it makes sense. Even when we e-mail, we print the e-mail and put it in a paper file so that everyone who is working on the case can access all the correspondence and what has happened in the file. If you have suggestions on how multiple attorneys and support staff can have access to all the information (e-mails, correspondence, pleadings, discovery, etc.) without printing and creating a file, please share. But also keep in mind our server has limited capacity, and it is not a shared server. Our attorneys have security issues with those. What would work within those parameters?

[Ernie Svenson]

Paper-based systems are less efficient than email. This is not subject to debate. The thought process that returns to the safety of an old system because it is familiar is what keeps progress from happening more rapidly. As the doctor told the patient when he complained that it hurt his arm when he made a certain motion, 'then, don't do that.'

If it doesn't seem to hurt, or you believe you have to make that motion, then the doctor's advice won't be very helpful. Do you need perfect security? What kind of security do you need exactly? How do you balance the need for reasonable security with the need to collaborate electronically?

I can't balance these assumptions for you. You have to do it. But, I can say that there are many ways to accomplish something if you really want to do it. Saying that something is too hard or not possible is easy.

But, in the end, it won't matter. Those who don't find more efficient ways to do business (or practice law) will be replaced by those who do. It may take a long time, but it's going to happen. My bet is that it'll happen a lot sooner than those who resist it are counting on.

[Joe]

Actually, it's probably the attorneys less familiar with newer technology and therefore less trusting of it that are relieved at the sight of thick envelopes with depositions.

[Harry]

Ernie,
In your post you mention that the lawyers need to know how to "scan the documents to PDF and send them as email."

Don't you mean save the documents as PDFs, so that a paper form of the document is never created?

[M. Sean Fosmire]

Two points:

1 - In our jurisdiction (Western District of Michigan), nothing is served by paper. All items are e-filed and service takes place by e-mail.

2 - You talk of "scanning to PDF" and then sending items by e-mail. It is far more efficient to convert a notice to PDF via the word processor or a PDF driver (including Adobe's own), rather than printing then scanning the notice.

[Ernie Svenson]

Yes, I meant 'print to PDF' (or at least that's what would make the most sense). I fixed it in the original. Thanks!

[Philip]

While I consider an e-mailed depo notice to clearly comply with FRCP 30, e-mail is a little unreliable because it's sometimes filtered to spam- lawyers have sometimes told me "I didn't get" this or that discovery or other thing that I've sent them. And e-mail receipt confirmations, such as the one Outlook offers, are annoying to the recipient- many people refuse to click to return a confirmation to the sender.

For that reason, I always send depo notices by both e-mail and fax, so you get a fax confirmation.

[DMZ]

Hey guys-

It looks like Rule 5 is on point here, which says that a paper, including a notice, is served by "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." Fed. R. Civ. P. 5(b)(2)(e).

[Ernie Svenson]

Hey DMZ:

Thanks for the incisive comment! So, I guess the best practice is to get everyone to agree in writing at the beginning of a case that service by email will suffice. Perhaps we should start a wiki page with a list of things that are useful to agree to at the beginning of a federal court case (it would probably apply to state court cases, but it would be easier to create a list with a national perspective by using the Federal rules first as a model).

Ernie

[Court Reporter in La]

Court reporters would love to go paperless too. I'd much rather have deposition notices e-mailed to me than have them faxed or mailed. Same for transcripts. I'd much rather e-mail a pdf or Clarity Bundle or E-tran than send out a printed copy. But unfortunately, most attorneys either want or need the printed copy.