On April 28, 2016, the Supreme Court of the United Sates approved amending Federal Rule of Civil Procedure 6(d) to remove electronic service from the modes of service under Rule 5(b)(2) that allow an extra three (3) days to respond.
Rule 6(a) specifies how a party must compute time as provided in the Federal Rules of Civil Procedure, any local rule, court order, or statute that does not specify a method of computing time. For periods stated in days, a party is to: (1) exclude the day that triggered the period; (2) count every day, including weekends and legal holidays; and (3) include the last day of the period. If the last day is a weekend or legal holiday, the period runs to the next day that is not a weekend or legal holiday. See Fed. R. Civ. P. 6(a). Formerly, FRCP 6(d) granted three (3) additional days to respond after service by mail, leaving a paper with the clerk, electronic service, or other means. After Dec. 1, 2016, FRCP 6(d) will no longer provide three (3) additional days to respond after a party has been served electronically.
For example, take Rule 27(a)(4), which provides 7 days to reply to a response to a motion for affirmative relief. See Fed. R. Civ. P. 27(a)(4). Assume that the response is filed electronically at 11:00 p.m. on Friday, Nov. 18, 2016, and follow the counting rules discussed above to determine the date the reply must be filed to be timely: (1) exclude Friday, Nov. 18 and begin counting on Saturday, Nov. 19; (2) count each day, including the weekend and the Thanksgiving holiday on Nov. 24; and (3) include our last day in the calculation. Under Rule 6(d) as written now, we also add three (3) days, which gives us the remainder of the weekend and makes the reply due on Nov. 28, 2016. Under the new Rule 6(d), we would not receive those additional days for electronic service and our reply must be filed by Nov. 25, 2016.
Rule 5(b)(2) was amended in 2001 to include service by electronic means. Even though such service was considered instantaneous even at that time, concerns about technical issues that could delay transmissions or incompatible systems making it difficult to open attachments warranted the consistent treatment with other modes of service. Technological advances and greater universal proficiency with electronic communication have fairly eliminated those earlier justifications for additional time to respond.
Electronic service after business hours, or just before or during a weekend or holiday, will result in a practical reduction in the time available to respond. In the instance described above, we did not receive the response until 11:00 p.m. on Friday, we had two intervening weekend days, and also had to count the Thanksgiving holiday. Under the new rule, then, we would have only four (4) business days to file our reply.
Of course, Rule 6(d)’s amendment does not just affect the above scenario. It applies to all deadlines in Federal court for papers which have been served electronically and including, but not limited to, responsive pleadings under Rule 12, motion practice controlled by Rule 27; discovery requests under Rules 33 and 34; any other deadlines controlled by the Federal Rules of Civil Procedure; and any local rule, court order, or statute that does not specify a method of computing time. Practitioners should be extremely mindful of this change and be prepared to respond to filings more quickly than before.