eService in Oregon can be frustrating or impossible if the other side isn’t playing by the rules or doesn’t understand them.  Below is a primer on how eService is supposed to work and the problems practitioners are encountering.

eService Rules

1. When you eFile into a case you are deemed to consent to eService.
   UTCR 21.100(1)(a).
2. eService is available for any document unless you are filing a document that requires personal service or service under ORCP 7. UTCR 21.100(1)(a).
3. At the first instance of eFiling into a case, a filer must enter in the electronic filing system the name and service email address of the filer, designated as a service contact on behalf of an identified party in the action. 
   UTCR 21.100(2)(a).
4. When eServing another party, the filer is responsible for selecting the appropriate service contacts in the action for the purpose of accomplishing eService. UTCR 21.100(3)(a).
5. If the preceding requirements are met, eService is automatic: “When the court accepts an electronic document for filing under UTCR 21.060(1)(a), the electronic filing system sends an email to the email address of each person whom the filer selected as a service contact or other service contact under section (3) of this rule. The email contains a hyperlink to access the document or documents that have been filed electronically.”  UTCR 21.100(4).
6. Transmission of the email by the electronic filing system to the selected service contacts in the action constitutes service. UTCR 21.100(4).
7. Electronic service is complete when the electronic filing system sends the email to the selected service contacts in the action.  UTCR 21.100(5).

When is eService not available?

You won’t be able to eServe the opponent if any of the following are true:

• The opponent has not eFiled into the case.
• You are filing a document that requires service under ORCP 7 or that requires personal service.  For example, a complaint or initiating petition.
• The opponent has obtained permission from the court to file conventionally.  (If the opponent is not an eFiler, she cannot be eServed.)
• Your opponent is a pro se who is not registered in the eFiling system.  (If the oppponent is not an eFiler, he cannot be eServed.)
• Your opponent eFiled into the case, but failed to enter a designated service contact into the system as required by UTCR 21.100(2)(a).

What if Opposing Counsel Doesn’t Know or Won’t Follow the Rules?

When opposing counsel eFiles into a case, but fails to enter a designated service contact, there isn’t much you can do about it … directly.  For example, you might jump to the conclusion that you can do this step for the other side.  Unfortunately you can’t.  You can select someone to serve, but you cannot add someone as a service contact.  Filers have to add themselves, and we are stuck with this consequence.  This begs the question: when someone doesn’t comply with UTCR 21.100(2)(a), what should you do?  Here are my thoughts:

• Verify the availability of service contacts early on. When the other side first appears or when you are served, login to the system and see if opposing counsel is available for you to select as a service contact.  This information may not be visible unless you are actually eFiling a document into the case, so don’t wait until you are up against a filing deadline to find out.  This leads to my next suggestion.
• Give yourself extra time.  If you aren’t sure whether the other side has entered a service contact, assume you will have to serve conventionally and plan accordingly.
• If you see that opposing counsel has failed to enter a service contact, pick up the phone. Refer opposing counsel to UTCR 21.100(2)(a) and ask him to take care of the oversight.
• Create a calendar reminder to follow-up in three to five days (or sooner, if necessary).  Login in to the system and check again. If the other side still has not added a service contact, take a screenshot to document that no contact is present, and send a follow-up email to opposing counsel with the screenshot attached. Reference your earlier call.  [If you’re a Mac user, see these instructions for taking screenshots.]
• If you’ve done all the above and the other side has not complied, it may be time for court intervention – such as moving the court for an order to compel the other side to follow the rule.  Attach a supporting affidavit documenting your efforts (calling, emailing opposing counsel). Your screenshot can be added as an exhibit.  Refer the court to UTCR 21.100(2)(a) and quote the rule.
• If the other side is ordered by the court to add itself as a service contact and fails to do so, asking for sanctions may be the next step.
• While all this is going on, don’t forget you still have to serve the other side. Proceed with conventional service until eService becomes available.

All Rights Reserved [2015] Beverly Michaelis