17 Jan 2013

Is proof of delivery of Service by Email needed if you have a Certificate of Service for email sent?

Is proof of delivery of Service by Email needed if you have a Certificate of Service for email sent?
Considerations With Florida Mandatory Serve By Email Rule.

The following is a response to a lawyer question prompted by a recent Florida Bar member benefit email referencing the new Florida mandatory Service by Email Rules of Judicial Administration.

Question: the email “…makes the following representations:  “Florida Rules of Judicial Administration now require service . . . by email and rely upon you, the sender, to track and prove delivery of said emails, and any attachments, to the intended recipient.”  [sic].  While the first part of the statement is true, I firmly believe the underlined portion is not. Rule 5.216(f) of the Florida Rules of Judicial Administration clearly state that, if an attorney certifies service using a certificate of service format, that certification constitutes “prima facie proof of such service in compliance with this rule”.  The model certificate of service was even modified to include emails as a method of service.  Further, I did not see anything in Rule 5.525 that would either supersede or modify the rule in Rule 5.216(f). If, of course, someone has some inside information that they wish to share with me, I am always willing to listen, and I am the first to admit that I do not know every page of the Florida Rules of Court inside and out.  However, attorneys have been relying upon the “certificate of service rule” since time immemorial to eliminate the low-end (and usually false) complaints that a litigant or opposing counsel did not receive an item, or did not receive it in a timely fashion.  Rule 5.216(f) clearly places the burden of proof on the complainer that the document, in fact, was not served when the certificate says it was served.  If that rule has been substantially changed, I believe both I and the rest of the bar would like to know about it, as it would constitute a substantial and marked departure from what we have been doing for the past several decades. As always, if you have any questions or concerns, please feel free to contact me.”

In response to the request for more information, let us focus on your concern about use of the language in the RPost Florida Bar member benefit introductory email, “and rely upon you, the sender, to track and prove delivery of said emails, and any attachments, to the intended recipient.”

Understanding that there may be different perspectives, please respectfully consider the following. We point these out as things a practicing attorney may wish to consider; and certainly those attorneys that practice the “belt & suspenders” rule of thumb for their clients, may want to consider.

1. For paper mail, there is a default non-interested third party deliverer. There is no default non-interested third-party deliverer for electronic mail. With standard mail and courier services, you have a non-interested third party that delivers the mail from the sender to the recipient. With standard Internet email, you do not necessarily have one. If your firm operates their own mail server, the email leaves from your mail server and is (most of the time) delivered to the recipient mail server (or their mail gateway, their authorized agent to receive their mail). Your server, the recipient’s server or the recipient’s agent are all interested parties. With traditional service by mail, one often signs an affidavit of sending or otherwise certifies that they provided the letter to non-interested third party for delivery — the US Postal Service or other third party courier; and they rely on that third party to deliver or report to them that it was not delivered. With standard email (considering Internet messaging and the technical workings of email), one does not have a natural and ubiquitous third party notification system of successful transmission (sent) or delivery failure (awareness by sender that the email did not reach the intended recipient). A useful Locke Lord Bissell and Liddell LLP legal analysis on Internet law as related to legal delivery and court-admissible email proof can be found here.

2. Not all email is delivered and furthermore, not all undelivered email returns a bounce or delivery failure notice to the sender. Consider the excerpt from the Jeffer Mangels Butler Mitchell LLP Corporate Counsel Guide entitled, “Moving Legal Notices from Paper to Electronic Delivery”. In the section entitled, “Common Misconceptions and Challenges with Standard Use of Electronic Technologies” (page 7) they cite the following :

Standard Email: There are challenges when using standard email as a method of delivering legal notices. A summary of the most important misconceptions are:

i.    Printed email: A printed e-mail (from ones sent folder, inbox, or archive) can easily be denied admission into evidence by simply challenging content authenticity, time of sending, or whether the email was delivered at all; as with a few mouse clicks, one can easily change anything in an email – or the other party can easily claim the sending party altered the email.

ii.    Email copy: A copy of an email sent to yourself or another person has no bearing as to whether a copy was also delivered to your intended recipient.  Email systems are often configured such that internal copies never even reach the Internet and are simply moved from one file directory to another on the sender’s email server.

iii.    Electronic archive: Electronically stored copies of email in an archive of the sender or recipient only provide a record of what the archiving party ‘claims’ to have happened.  Even if the archiving party can forensically prove the content in their archive is authentic, they will be unable to prove delivery or timing of receipt should the recipient claim not to have received it; or authenticity of the sender should the receiver claim to have received a certain email (note, it is very easy, for example, for any receiver to create a false email from any sender and send it into an archive at a specified point in time).

iv.    Bounce notices: Reliance on bounce notices provide a false sense of security — most recipient servers turn off bounce notices due to “Directory Harvest Attacks” and “Backscatter Blacklisting” concerns.  Therefore, if the sender does NOT receive a bounce notice, they certainly cannot rely on that to demonstrate successful delivery.

v.    Denial of email reception: IT departments often overlook the complexity of “packaging” ones evidence for presentation to other parties. Importantly, if there is a dispute, how does one present the information to the arbitrator, mediator, judge or jury?  How does one show what has been produced is the authentic information – authentic internet records associated with precise content and uniform times of sending and receiving?  Litigators can simply point to public research and claim their clients never received the email or request the sender to authenticate that the email was in fact received, what the received content said, and when it was received. For example, Ferris Research, a leading messaging analyst, reports, “3% of non-bulk, business-to-business Internet email goes undelivered to its intended recipient.”  How do you prove that your critical email notification was not within than 3%?”

3. The Florida mandatory Service by Email Rules of Judicial Administration may be read to consider it the sender’s responsibility to re-send the notice if they learn the email notice was not received by the intended recipient. Specifically, Rule 2.516(b)(1)(D)(ii)) reads, “if the sender learns that the email did not reach the address of the person to be served, the sender must immediately send another copy by email.”  Consider this, and note the above Jeffer Mangels points; in particular 2iv that discusses how non-receipt of an email bounce notice does not mean the email was successfully transmitted. Arguably, the sender could learn “the email did not reach the address of the person to be served” by way of the recipient later on, claiming that they did not receive the email. Their claim on non-receipt, unless the sender has a definitive record that the email was in fact received, would serve as an example where “the sender learns that the email did not reach the address of the person to be served” (Florida Rule 2.516(b)(1)(D)(ii)). Further, the sender should want email delivery proof in the case the recipient confuses “non-receipt” of the email with “not opened” or “not read”. An email can be delivered without the recipient being aware that they received it and without the recipient having opened and read it. There is never a requirement for the recipient to have opened or read the message, neither in paper delivery nor electronic.

4. According to the Rule, “the sender must immediately send another copy by email” (Rule 2.516(b)(1)(D)(ii)) if they learn the email was not received. Therefore, we believe that the statement in the RPost Florida Bar member benefit introductory email is valid, where we suggest that one might read the Rule to “rely upon you, the sender, to track and prove delivery of said emails, and any attachments, to the intended recipient.” The email and associated landing page does not claim that there is a requirement for the sender to have proof of successful transmission, but rather, indicates that the sender may wish to have proof to protect themselves and their clients. The email and landing page follows, “Without court-admissible proof of delivery of email, the sending lawyer is exposed to recipient claims of non-receipt of documents. This can bring uncertainty to litigation deadlines.” As some Florida Bar members pointed out, the certificate of service may by itself be considered prima facie proof of service and serve as the record of service unless or until the recipient rebuts successful transmission or receipt of the email. To rebut, the recipient could, for example, simply provide a written statement, a screen shot of their email inbox around the time of service without existence of the email, perhaps a copy of server logs, or some other statement used as testimony that they did not receive the email. It is easy for the recipient to show, state, or prove non-receipt with testimony. Regardless, the important thing to consider is that by simply sending the notice attached to an RPost Registered Email message, the sender mitigates risk of claims of non-receipt, gains confidence and peace-of-mind that the notice was successfully received and when, and eliminates the potential of unnecessary side-bar arguments around successful or unsuccessful service that can waste time and money.

Considering the above, one could read the Rule to infer that if the recipient claims non-receipt of the email, the burden would be on the sender to either prove receipt of re-send.

RPost gives the sender the advantage, as with RPost, the sender can prove receipt of the email. RPost provides a service that proves delivery of email. RPost’s Registered Email service provides the verifiable record of successful transmission in the form of a court admissible Registered Receipt™ email returned to the sender.

Those lawyers that prefer a “belt and suspenders” approach to mitigate potential uncertainty – or to limit potential distracting side-bar arguments, would likely find value in sending their messages with Registered Email proof. As such, Florida Bar now offers this service as a member benefit.

Again, we present the above to provide a perspective, and some citations, as you requested. We are not looking to engage in a debate with you on the topic.

We invite you to a free trial of the RPost services – as a Florida Bar member benefit.

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