Electronic service and remote depositions in California state court actions

Updated January 9, 2023.

The previous version of 1010.6 has been updated effective 1/1/2023, through Assembly Bill no. 2961.

The current text.

The first sentence of subdivision (e)(1) has been relocated verbatim to (b)(2): “A person represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.”

The second sentence of (e)(1) is now subd. (b)(3), with some tweaks: “Before first serving a represented person electronically, the person effecting service the serving party shall confirm by telephone or email the appropriate electronic service address for the counsel being served.”

Finally, subd. (e)(2) has been moved to subd. (b)(4) with light edits: “A party person represented by counsel shall, upon the request of any party person who has appeared in an action or proceeding and who provides an electronic service address, electronically serve the requesting party person with any notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.

Finally, this revision adds subd. (b)(1) which provides: “This subdivision applies to mandatory electronic service. The court may order electronic service on a person represented by counsel who has appeared in an action or proceeding.” 

This appears to be an attempt to streamline the formerly somewhat unwieldy subd. (a)(2)(A), which divided cases filed on or before December 31, 2018 and newer cases. For the latter, subd. (a)(2)(A)(ii) provided: “[I]f a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document is authorized if a party or other person has expressly consented to receive electronic service in that specific action, the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d), or the document is served electronically pursuant to the procedures specified in subdivision (e).”

Although messier in general, subd. (a)(2)(A)(ii) incorporating subd. (e) was, to my reading, somewhat less ambiguous; the “may order” language in the current (b)(1) seems to be in conflict with the “shall accept” language in (b)(2).

Given the legislative intent (“require a person represented by counsel, who has appeared in an action or proceeding, to accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission”), the history of the statute, I think a party wishing to “force” recalcitrant opposing counsel to join the 20th century (email has been around in roughly its current form since 1982; “Section 1010.6, which governs electronic filing and service in civil actions, was enacted in 1999” [src]) will likely prevail.

In short, I suggest: Change your proof of service language as required (e.g., I changed references from “1010.6, subd. (b)(2)(A)(ii), (e)” to “subd. (b)(2)”), and carry on as you have been.

Original 3/17/2021 Content:

I do a fair amount of federal litigation, where Fed. R. Civ. P. 5(b)(2)(E) has long provided for electronic service of, e.g., moving papers. California’s state courts have largely lagged, however, and while Civil Code Section 1010.6 ostensibly set forth a mechanism where e-filing opened the door to e-service, in practice the statute was so confusing that judges often interpreted it differently.

COVID Emergency Rules

In response to COVID-19, however, the Judicial Council adopted a set of Emergency Rules, including Rule 12 (original emergency rules):

Emergency rule 12. Electronic service 

(a) Application

   (1) Notwithstanding any other law, including Code of Civil Procedure section 1010.6, Probate Code section 1215, and rule 2.251, this rule applies in all general civil cases and proceedings under the Family and Probate Codes, unless a court orders otherwise.

   (2) Notwithstanding (1), the rule does not apply in cases where parties are already required by court order or local rule to provide or accept notices and documents by electronic service, and is not intended to prohibit electronic service in cases not addressed by this rule.

(b) Required electronic service

   (1) A party represented by counsel, who has appeared in an action or proceeding, must accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission. Before first serving a represented party electronically, the serving party must confirm by telephone or email the appropriate electronic service address for counsel being served.

   (2) A party represented by counsel must, upon the request of any party who has appeared in an action or proceeding and who provides an electronic service address and a copy of this rule, electronically serve the requesting party with any notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.

(c) Permissive electronic service

   Electronic service on a self-represented party is permitted only with consent of that party, confirmed in writing. The written consent to accept electronic service may be exchanged electronically.

...

Repeal of the Emergency Rules Following Adoption of SB 1146

Emergency Rule 12 has now been repealed, because: “On September 18, 2020, the Governor signed Senate Bill 1146 (Stats. 2020, ch. 112),4 making it effective immediately. Among the stated objectives of SB 1146 is the intent to codify the provisions of emergency rules 11 and 12 by allowing deponents to appear for deposition remotely and mandating under specified circumstances the electronic service and acceptance of nonjurisdictional notices and documents between represented parties in certain civil proceedings.”

Electronic Service Authorized

Senate Bill 1146, among other actions, codified the above rule as subd. (e) of Code of Civil Procedure section 1010.6:

(e) 

   (1) A party represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission. Before first serving a represented party electronically, the serving party shall confirm by telephone or email the appropriate electronic service address for counsel being served.

   (2) A party represented by counsel shall, upon the request of any party who has appeared in an action or proceeding and who provides an electronic service address, electronically serve the requesting party with any notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.

(Emphasis added.) Subsection (a)(2)(A)(ii) provides: “For cases filed on or after January 1, 2019, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document is authorized if a party or other person has expressly consented to receive electronic service in that specific action, the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d), or the document is served electronically pursuant to the procedures specified in subdivision (e).” Subsection (a)(4)(A) states “electronic service of that document is deemed complete at the time of the electronic transmission of the document...” while subsection (a)(5) mirrors the federal rules providing for service before midnight on a court day as deemed served on that court day: “Any document that is served electronically between 12:00 a.m. and 11:59:59 p.m. on a court day shall be deemed served on that court day. Any document that is served electronically on a noncourt day shall be deemed served on the next court day.” Finally, subsection (a)(4)(B) tacks on an additional two court days for electronic service of most documents (instead of, e.g., the 5+ calendar day extension of time to respond provided for mail service in Code of Civil Procedure section 1013(a)).

Finally!

The only potential gotcha is, Section 1010.6(e)(1) does require, before serving documents electronically, that the serving party “shall confirm by telephone or email the appropriate electronic service address for counsel being served.” (Emphasis added.) I like to send a short email confirming their service address when opposing counsel first appears.

Remote Depositions Authorized

Additionally, the emergency rule allowing a deponent, or party noticing a deposition, to elect to have the deposition conducted remotely (e.g., via Zoom), has now been permanently codified into law. SB1146 amended the Civil Discovery Act:

Cal. Code Civ. Proc. § 2025.310(a): “At the election of the deponent or the deposing party, the deposition officer may attend the deposition at a different location than the deponent via remote means. A deponent is not required to be physically present with the deposition officer when being sworn in at the time of the deposition.”