Yesterday, I posted about a change in the amended rules that eliminates the extra three days to respond to documents served by fax. The amended rules also provide two new methods for service, but these methods each have a wrinkle that the rules do not address.
First, the rules (TRCP 21a(a)(2) and TRAP 9.5(b)) will now permit service by "commercial delivery service." This change brings the Texas rules in line with the federal rules, which have long permitted service by FedEx and UPS. The rules make service complete when the document is deposited with the service provider. The wrinkle is that the rules do not provide the recipient any additional time to respond after receiving the document. Although the document might be delivered the next day, it could take several days. It seems that the rules should provide additional time for a response, as they do when service is by mail.
Second, TRCP 21a(a)(2) and TRAP 9.5(b) will be amended to permit service by email. This is a welcome update to the rules, especially since many documents served "by fax" are now really served by an email desktop fax service. The wrinkle is that there is a gap in the amended rules. TRCP 21a(b) and TRAP 9.5(c) address when service is "complete." And although the rules address when service is complete by mail, by fax, and by commercial delivery service, they do not provide when service by email is complete. Analogizing to service by fax, it would seem that delivery would be complete upon receipt. The biggest issue will be proof of service. Regardless, it would be good practice to request delivery receipts and read receipts and to keep a copy of the sent email.
It will be interesting to see if these issues are addressed in future amendments.
- Rich Phillips, Thompson & Knight