§5.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§5.8 STRATEGIC AND PRACTICAL CONSIDERATIONS

Although e-mail service is now commonplace, the adoption of electronic filing procedures by the courts lags behind. Obtain a written agreement with all counsel for service by e-mail at the outset of the lawsuit rather than waiting until the first time you need to serve a document. Remember that instantaneous transmission may not buy you any extra time on filing day if the court does not accept electronic or fax filings. If you have little experience practicing in a given county, carefully review the local rules related to service, filing, motions, and deadlines to avoid making incorrect assumptions.

As electronic service and filing practices have become more widespread, service on numerous parties is often no more difficult than serving a single opponent. Thus, the provisions of CR 5(a), allowing for exceptions to the requirement of service on all parties when there are numerous defendants, are rarely invoked. If necessary, a party may ask for an order simplifying service requirements in a conference pursuant to CR 16 or CR 26(f).

The service provisions of CR 5(b)—unlike FED. R. CIV P. 5(d)—do not require a certificate of service except when mailing. When service is accomplished by delivery, however, the recipient should be asked to stamp the original document and a return copy with the date and time of service. Alternatively, the sending party can obtain an affidavit of service. Demonstrating proof of service is a prerequisite to many motions. Likewise, when filing a document with the court by hand delivery, most attorneys send an extra copy for the messenger to stamp with the date and time ("conform") and return for the attorney's files.

CR 5(i) shifts the responsibility for preserving original discovery documents from the clerk's office to attorneys. Attorneys must carefully manage both deposition transcripts and original responses to written discovery to ensure their availability for trial. Particularly if your client is likely to be involved in similar litigation in the future, consider retaining original responses to discovery requests and depositions after the conclusion of a case, because they will not be preserved in a court file or elsewhere. Expert depositions and reports can be particularly helpful to your client or others with similar interests in future litigation.

When serving third-party subpoenas, remember to provide copies to all counsel. See CR 45(b)(2).

Facsimile and Electronic Filing are addressed in detail in GR 17 and GR 30. The text of those rules is set out below.

GR 17

FACSIMILE TRANSMISSION

(a) Facsimile Transmission Authorized; Exceptions.

(1) Except as set forth in subsection (a)(5), the clerks of the court may accept for filing documents sent directly to the clerk or to another by electronic facsimile (fax) transmission. A fax copy shall constitute an original for all court purposes. The attorney or party sending the document via fax to the clerk or to another shall retain the original signed document until 60 days after completion of the case. Documents to be transmitted by fax shall bear the notation: "SENT on_____ (DATE) VIA FAX FOR FILING IN________COURT."

(2) If a document is transmitted by facsimile to another for filing with a court, the person responsible for the filing must attach an original affidavit as the last page of the document. The affidavit must bear the name of the court, case caption, case number, the name of the document to be filed, and a statement that the individual signing the affidavit has examined the document, determined that it consists of a stated number of pages, including the affidavit page, and that it is complete and legible. The affidavit shall bear the original signature, the printed name, address, phone number and facsimile number of the individual who received the document for filing.

(3) The clerk of the court may use fax transmission to send any document requiring personal service to one charged with personally serving the document. Notices and other documents may be transmitted by the clerk to counsel of record by fax.

(4) Clerks may charge reasonable fees to be established by the Office of the Administrator for the Courts, for receiving, collating, and verifying fax transmissions.

(5) Without prior approval of the clerk of the receiving court, facsimile transmission is not authorized for judge's working copies (courtesy copies) or for those documents for which a filing fee is required. Original wills and negotiable instruments may not be filed by facsimile transmission.

(6) Facsimile Machine Not Required. Nothing in this rule shall require an attorney or a clerk of a court to have a facsimile machine.

(b) Conditions.

(1) Documents transmitted to the clerk by fax shall be letter size (8 1/2 by 11 inches). Documents over 10 pages in length may not be filed by fax without prior approval of the clerk.

(2) Any document transmitted to the clerk by fax must be accompanied by a fax transmittal sheet in a format prescribed by the court. The form must include the case number (if any), case caption, number of pages, the sender's name, the sender's voice and facsimile telephone numbers, and fax fee remittance certification. Transmittal sheets are not considered legal filings.

(3) A document transmitted directly to the clerk of the court shall be deemed received at the time the clerk's fax machine electronically registers the transmission of the first page, regardless of when final printing of the document occurs, except that a document received after the close of normal business hours shall be considered received the next judicial day. If a document is not completely transmitted, it will not be considered received. A document transmitted to another for filing with the clerk of the court will be deemed filed when presented to the clerk in the same manner as an...