Litigants Lose Extra Three Days to Respond under the Federal Rules of Civil Procedure When Filing Electronically

Lyndsay A. Gorton

Lyndsay A. GortonOn December 1, 2016, the Federal Rules of Civil Procedure (the “Rules”) were amended to make the “three-day rule” inapplicable to electronic filers and litigants who agree to receive filings electronically. The “three-day rule” provided an additional three days to respond if a filing was not served personally, i.e., if it is mailed or electronically filed. Although we do not normally alert our contacts to these types of procedural changes, this one could have significant impacts on federal government contractors, particularly those who are involved in lawsuits in the Eastern District of Virginia’s “Rocket Docket.”

The federal courts require lawyers to use an electronic filing system called CM/ECF (“ECF”) to file documents. To use ECF, an attorney logs into ECF and uploads a document to an electronic database. The document is immediately placed on the electronic docket and is automatically date and time stamped. Immediately after filing, all of the parties that have filed an appearance in the case are notified of the filing via email.

The three-day rule, or “the mailbox rule,” is a holdover from the days before ECF and before electronic filing was the norm. Before electronic—i.e. instantaneous—filing existed, a litigant who was not served personally was given an extra three days to respond. For example, if the Rules provide 14 days to file an opposition to a motion, the mailbox rule extended it to 17 days from the original filing if the filing was made by mail. When the electronic filing system was new, the mailbox rule was also applied to filings via ECF to account for potential technology issues that could prevent the recipient from accessing the document immediately. Now that the Rules have been amended, 14 days means 14 days. There is no cushion. This change has particularly large potential impacts when the Rules provide for a seven-day response time. For practical purposes, the difference between seven days and 10 days is almost an entire work week.

The amendment is likely to have especially noteworthy impacts in the Eastern District of Virginia’s “Rocket Docket.” The “Rocket Docket” is infamous for its quick disposition of cases filed there. No one knows the speed of the Eastern District of Virginia better than the federal government contractors that have headquarters or offices in Northern Virginia. Contractors in the Eastern District also know that their law firms sometimes need to have all hands on deck to respond to filings from the other side, which may be exacerbated by the new shorter time limit. Having fewer days may also require more immediate responses on the side of the companies. If outside counsel needs the contractor to do in-house research that will take two days, and has to respond within seven days, those lost days are going to be immediately felt and likely agonized over.

It is important to note that courts will be able to adjust time limits in their local rules, which means that some litigants may get to keep the extra three days. Other courts may simply add three days to their existing Local Rules-based deadlines. However, at this point, federal contractors need to prepare to respond in the time limits provided in the Federal Rules without the three-day cushion for electronically filed documents.