October 23, 2021

Volume XI, Number 296

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Odyssey and E-mail Service Under the New and Improved NC Rule 5

In October of 2020, House Bill 679 made significant changes to Rule 5 ("Service and Filing of Pleadings and Other Papers") of the North Carolina Rules of Civil Procedure. The amended Rule 5 creates two important changes.

First, it introduces the concept of service through an electronic filing system as a soon-to-be universal default rule. Second, it allows for the service of pleadings and other papers through e-mail in the meantime.

  1. Required Service Through the Odyssey Electronic Filing System: On the horizon for all cases, but applicable to some cases now.

The goal of House Bill 679 is to allow for electronic filing and service. Over the next five years, a statewide electronic filing system known as Odyssey will be implemented throughout North Carolina. The first category of amendments to Rule 5 is in anticipation of the new Odyssey electronic filing system. 

Notably, the amended Rule 5 sets forth a default rule that service through the electronic filing system is to be used when available. See N.C. R. Civ. P. 5(b) ("Service is made under this subsection if performed through the court's electronic filing system. When service through the court's electronic filing system is not available, or the party is not registered to receive service through the court's electronic filing system, service may be made . . .") (emphasis added). However, as noted above, the electronic filing system is not yet in place across the state. As such, this new "default" rule won't take practical effect in all cases until electronic filing is fully rolled out across the court system.

There are three instances where the new default rule requiring service through the electronic filing system has already taken effect. The recently amended Rules 5 and 5.1 of the General Rules of Practice for the Superior and District Courts explain three situations where electronic filing is currently available (and therefore must be utilized if the party upon whom service is sought is registered to receive electronic filing). This list includes: 

  1. Counties that have already implemented Odyssey;

  2. "Cases that are either designated 'complex business' or assigned to a Business Court judge" (but see the Business Court Rules for distinctions); and

  3. "[C]ases subject to the North Carolina eFiling Pilot Project."

As such, attorneys working on a case that falls within one of the above criteria may be required to effectuate service through the electronic filing system. The only instance set forth within the amended Rule 5 where one may fall within an exception is if the party upon whom service is sought has not registered to receive service through the electronic filing system. See N.C. R. Civ. P. 5(b) ("When . . . the party is not registered to receive service through the court's electronic filing system, service may be made . . ."). In that case, attorneys may effectuate service through alternative means listed in Rule 5(b)(1)(a)–(c) such as fax, mail, personal delivery, or the newly added e-mail. See N.C. R. Civ. P. 5(b).

  1. You've Got Mail: Service of pleadings and other papers using e-mail. 

The most important change under this rule is that for virtually all cases now, e-mail service for pleadings and other papers (such as discovery requests) is generally acceptable. See N.C. R. Civ. P. 5(b). As explained above, once the new electronic filing system is rolled out, service through the electronic filing system will be the default rule. However, until then, service through the electronic filing system is not available (unless you're in an early rollout county, the business court, or your case is a part of the pilot program explained above). As such, other methods of service detailed in Rule 5(b)(1) and (b)(2) are fair game. See N.C. R. Civ. P. 5(b) ("When service through the court's electronic filing system is not available . . . service may be made as follows[.]"). These methods include all tried and true options such as mail, personal service, and fax. See N.C. R. Civ. P. 5(b)(1). They also include the newly added option of service via e-mail. Id.

How to serve via email:

First, when effectuating service on a party represented by an attorney via e-mail, you may use the attorney's email on record with the court in the case. See N.C. R. Civ. P. 5(b)(1)(a). As with personal service or fax service, the e-mail must be sent by 5 pm EST to be effective for that day. Id. Failure to send the e-mail before 5 pm EST will result in the service being calendared for the next business day. Id. Notably, there is no need to get consent in order to effectuate service via e-mail on a party represented by counsel. 

Second, when effectuating service on an unrepresented party in a case via e-mail, you must first have written consent from the unrepresented party. See N.C. R. Civ. P. 5(b)(2)(c). Further, a copy of the party's written consent to receive service via e-mail must be filed with the court. Id. As with service on another attorney, in this instance, the e-mail must also be sent before 5 pm EST to be effective for that day. 

Certificate of service changes:

When serving a party using e-mail, the certificate of service must show the e-mail address of each person served. See N.C. R. Civ. P. 5(b1). 

Interplay with rule 6(e):

NC Rule of Civil Procedure 6(e) grants an additional three days to a party who is served by mail. N.C. R. Civ. P. 6(e). Notably, HB 679 does not change Rule 6(e) or its application. As such, a party who receives service via e-mail does not qualify for an additional three days granted under Rule 6(e). 

These changes will aid the North Carolina court system in becoming more accessible, user-friendly, and overall effective in the coming years. As new Rules are implemented to bring the Odyssey e-filing platform into effect it is important for attorneys to remain up to date on these alterations.

© 2021 Ward and Smith, P.A.. All Rights Reserved.National Law Review, Volume XI, Number 230
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Payton R. Collier Litigation Lawyer Ward and Smith

Payton is a member of the firm's litigation practice group.  Payton assists clients in all phases of commercial litigation, from the filing of an initial complaint through trial.  Payton is based in Ward and Smith's Raleigh office.

Prior to joining the firm, Payton was a summer associate with Ward and Smith.  Payton also served as an extern with the Honorable Judge John M. Tyson, drafting memoranda and opinions and analyzing a broad range of issues before the North Carolina Court of Appeals. She also interned in the Special and Composite Litigation Divisions at the North Carolina...

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E. Bradley Evans, Ward Smith, Litigation lawyer, mediations, arbitrations, jury trials, and appeals

Brad is one of the firm's Managing Directors.  His experience encompasses various areas of civil litigation in both the federal and state courts.  He has experience in all aspects of civil litigation, including depositions, hearings, mediations, arbitrations, jury trials, and appeals.  Brad advises clients and litigates cases involving all forms of commercial, business, estate, and intellectual property disputes.  He regularly represents contractors, subcontractors, and suppliers in construction litigation in state and federal courts.  He has litigated numerous matters...

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