STATUTORY ELECTRONIC SERVICE has been a lawful means of service under the Georgia Civil Practice Act since 2009. However, given the wave of changes that have occurred since that time with Georgia’s e-filing systems and procedures, along with new challenges presented in today’s time and the increasing flexibility that attorneys have in their working environment, the subject warrants revisiting.
OCGA § 9-11-5 outlines the procedures and parameters for service of pleadings filed subsequent to the original complaint, as well as other documents that are not filed with the court. Subsection (b) of the statute authorizes service by delivering a copy of the pleading or other document by “transmitting a copy via e-mail in portable document format (PDF) to the person to be served.” However, before a litigant is permitted to serve a party via statutory electronic service pursuant to OCGA § 9-11-5(b), that party must first provide some form of consent pursuant to OCGA § 9-11-5(f).
How to Consent to Statutory Electronic Service
OCGA § 9-11-5(f) provides for three different ways that parties and/or attorneys can consent to statutory electronic service:
- Complaint/Answer Consent – The party can include the person to be served’s e-mail address(es) in or below the signature block of their complaint, if they are the plaintiff, or in their answer, if they are a defendant [OCGA § 9-11-5(f)(1)(B)]; or
- Consent by Notice – The party can file a Notice of Consent to Electronic Service and include the person to be served’s e-mail address(es) in the Notice [OCGA § 9-11-5(f)(1)(A)]; or
- E-Filing System Consent (For Attorneys Only) – When an attorney files a pleading in a case through an e-filing system, the attorney is deemed to have consented to statutory electronic service with future pleadings for that case at the primary e-mail address on record with the e-filing system. Note – in cases that were initiated using an e-filing system, an attorney may not rescind their consent to be served with pleadings via statutory electronic service. [OCGA § 9-11-5(f)(4)].
It is important to note that, once a party provides consent to be served via Statutory Electronic Service, it is that party’s responsibility to provide notice of any change in their email address(es). [OCGA § 9-11-5(f)(3)].
How to Serve a Party via Statutory Electronic Service
In order to perfect Statutory Electronic Service via e-mail, the subject line of the e-mail must contain the words “STATUTORY ELECTRONIC SERVICE” in all-capital letters. The e-mail must be sent to all e-mail addresses provided by a party pursuant to OCGA § 9-11-5(f).
While most, if not all, e-filing systems in the State of Georgia will automatically serve documents in conformance with OCGA § 9-11-5(b), it is better as an order of course to perfect service both through the e-filing system as well as through a separate e-mail to avoid certain procedural hazards as explained in more detail below.
What Happens If You Didn’t Receive the Electronic Service?
In the event that a party does not receive electronic service of a pleading, OCGA § 9-11-5(f)(5) allows that party to certify to the court that they did not receive such pleading. The certification must be made under oath (i.e., either by sworn affidavit or direct sworn testimony to the court). If such a showing is made, then there shall be a rebuttable presumption that the party did not, in fact, receive the pleading. The serving party may dispute the assertion of nonservice, in which case the court shall decide the issue.
Because OCGA § 9-11-5(f)(5) provides a mechanism for disputing service, it is important for litigants to maintain sufficient proof of service so that they are able to rebut the assertion of nonservice. OCGA § 9-11-5(b) provides that “[p]roof of service may be made by certificate of an attorney or of his or her employee, by written admission, by affidavit, or by other proof satisfactory to the court.” Given these available methods, and in order to maintain adequate proof of service to present if necessary, the author recommends that litigants utilize multiple methods of service upon a party. This includes Statutory Electronic Service through both the court’s e-filing system and by e-mail, as well as by sending hard copies in the mail in certain situations. A certificate providing proof of service in such instance should observe the following form:
This is to certify that the undersigned served true and accurate copies of [the document] to all parties of record via Statutory Electronic Service through the Court’s e-filing system and by email, and by depositing the same in the United States Mail, with sufficient postage affixed thereon to assure delivery and properly addressed as follows:
[33 Linden Avenue]
[Greenville, Georgia 30222]
By utilizing multiple forms of service, you can ensure that a party receives your pleading or other document, and will also have access to multiple forms of proof that the document was actually served.
With the increasing ability of attorneys and litigants to work from home, as well as the required use and standardization of e-filing systems in Georgia, Statutory Electronic Service will continue to become the primary, and oftentimes sole, means of service in civil cases. As such, it is important for parties to equip themselves with the tools to effectively utilize electronic service. Moreover, these tools can help save time, resources, and streamline the processes for which parties receive and store information.