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December 20, 2016 Practice Points

Three-Day Rule Eliminated for Electronic Service

To avoid an untimely filing due to miscalculation, counsel should be aware of the recent amendment to Rule 6(d).

By Erin M. (Maggie) Cook

As of December 1, 2016, amendments to the Federal Rules of Civil Procedure took effect, including the amendment of Rule 6(d), which governs additional time after certain kinds of service. The new Rule 6(d) removes service by electronic means under Rule 5(b)(2)(E) from the modes of service that allow three days to be added after the prescribed period to respond expires. The new Rule 6(d) reads as follows:

(d) Additional Time After Certain Kinds of Service. When a party may or must act within a specified time after being served and service is made under Rule 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to), 3 days are added after the period would otherwise expire under Rule 6(a).

Fed. R. Civ. P. 6(d).

According to the “Committee Notes on Rules” for the 2016 Amendment to Rule 6(d), electronic service was first included as a mode of service for which the three-day rule would apply in 2001. Even though service by electronic transmission seemed instantaneous, there were concerns that the transmission might be delayed due to system incompatibility or inability to open attachments. The 2016 amendment reflects the fact that these prior concerns regarding electronic transmission have been substantially alleviated with the advancement of technology and increased skill in using electronic transmission. In addition, a number of rules have changed to ease the task of computing time and adding three days at the end of a prescribed period complicated the calendaring, especially when the last day fell on a Saturday, Sunday, or legal holiday.

To avoid an untimely filing due to miscalculation, counsel should be aware of the recent amendment to Rule 6(d) and calculate deadlines without adding the three days.

Erin M. (Maggie) Cook is an associate with Godfrey Kahn in Milwaukee, Wisconsin.

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Erin M. (Maggie) Cook – December 20, 2016