Posted by wlansden |
Filed under commentary, general, practice tips
By Eileen Burkhalter Smith
Let’s talk about faxing. Have you been properly served with a pleading or discovery if you receive something by fax? Rule 4 of the Federal Rules of Civil Procedure talks about service of process, which is not the topic of this note. I am talking about serving pleadings and “other papers” addressed in Rule 5 of the Federal Rules of Civil Procedure. This Rule (specifically 5(b)(E) and (F)) says that you can serve by fax (or email) if the opposing party consents in writing. State rules, however, may not be as clear.
What about fax filing? State Courts (in Tennessee at least) allow fax filing by Rule (Tenn. R. Civ. 5A), but in practice, I have found this to be hit or miss. It is shocking the degree to which County Clerks translate and apply this rule. I have found it is always best to simply call and ask what is acceptable in a particular county. (And the fees! It is almost always cheaper to send via overnight-courier than to fax…)
I have often assumed that sending something via fax “counts” as service. When I looked into it, however, I realized this is not a given.
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