Should Lawyers efile Discovery Documents?

We recently served a Notice to Admit upon a defense attorney by mail and did not receive a response within the 20 days allowed.

After efiling a Summons and Complaint, the defense attorney efiled an Answer which denied ownership of the defendant’s car. We served, by mail, a Notice to Admit that the defendant owns the car.

After the 20 days passed, we called the defense attorney and she said she never received our Notice to Admit and that it wasn’t in the court’s e-file. What she didn’t know is that according to the NYS Supreme Court EFile Office (646) 386-3033, the Notice to Admit and other discovery documents must be served the old-fashioned way by mail, unless it is requested by the judge or both parties sign a stipulation to e-file discovery documents.

I like the idea of e-filing all documents including discovery documents because there is a clear record of the filing. Defense lawyers frequently claim they never received our papers, especially one particular defense law firm which has made that claim on every case we have with them.

It is understandably confusing to lawyers who use the e-file system and most lawyers are now e-filing discovery documents. When clicking on filing non-motion documents, a lawyer will see many discovery documents listed such as a Demand for a Bill of Particulars and a Bill of Particulars. Also listed is the Notice to Admit which can be seen in the image below.

efile Notice to Admit

However, the Uniform Rules for the Trial Courts do not permit e-filing discovery documents unless a stipulation is filed by both parties.  Uniform Rule 202.5-b paragraph (j) states:

(j) Electronic Filing of Discovery Materials. In any action subject to e-filing, parties and non-parties producing materials in response to discovery demands may enter into a stipulation, which shall be e-filed, authorizing the electronic filing of discovery responses and discovery materials to the degree and upon terms and conditions set forth in the stipulation. In the absence of such a stipulation, no party shall file electronically any such materials except in the form of excerpts, quotations, or selected exhibits from such materials as part of motion papers, pleadings or other filings with the court.

Ed pointed out in the comments that, “The rule cited only applies to courts where electronic filing is on consent. Rule 202.5-bb applies to courts with mandatory electronic filing and it does not have any prohibition to electronic filing discovery materials.”

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5 thoughts on “Should Lawyers efile Discovery Documents?

  1. Andrew

    Thanks, but I find the language of the rule confusing. It speaks of “producing materials in RESPONSE to discovery demands.” To me, that might mean that litigants may (or even must?) e-file discovery demands, but may not e-file responses to such demands without a stipulation. Is there any consensus emerging about this apparent ambiguity?

  2. philesq Post author

    It’s definitely confusing! That’s why I wrote this article.

    Broken down, the sentence states: Parties producing materials in response to discovery demands may enter into a stipulation authorizing the electronic filing of discovery responses and discovery materials.

    To me, the sentence indicates that after receiving discovery demands by mail, I can call my adversary to see if we can agree to file the documents electronically.

    Again broken down, it further states: In the absence of such a stipulation, no party shall file electronically any such materials.

    Consequently, without a stipulation, discovery documents shall not be electronically filed.

    Interestingly, the e-file office told us that the discovery and other other documents not normally e-filed are listed on the e-file drop-down list only so they can be e-filed when requested by a judge. However, the rule says that the parties may enter into a stipulation and doesn’t say that it has to be requested by a judge.

  3. Chris

    Thanks. This is very informative. I think it’s ridiculous that they do not permit us to file discovery, when, back in the day, you could hard file discovery as proof of service. I assume it’s because of the storage required. We have recently been serving discovery responses USPS priority mail, so we have tracking and proof of delivery. Usually, the cost is less than the postage would otherwise be.

  4. philesq Post author

    We have also been using USPS Priority Mail because of the tracking. I love that I can go to the USPS website and find the tracking information showing delivery. I then print the page to PDF and file it in the client’s case in SmartAdvocate, the personal injury case management software we use.

    We noticed defense lawyers e-filing discovery documents in many of our cases without asking for our consent. If they did ask, we would eagerly sign a stipulation consenting. We decided to join the defense and have simply been e-filing discovery documents without asking for a stipulation. One defense firm, Martin Taylor, continually claims they never receive our responses. That’s when we started e-filing everything.

    Just be careful not to e-file documents with dates of birth and Social Security numbers. We do not e-file medical records. E-filed documents are available to the public.

    For information about how to properly redact a document before e-filing, read my article REDACTING CONFIDENTIAL INFORMATION – NYS SUPREME COURT at https://newyorkseriousinjuryattorneys.com/info/redact-information-supreme-court

  5. Ed

    The rule cited only applies to courts where electronic filing is on consent. Rule 202.5-bb applies to courts with mandatory electronic filing and it does not have any prohibition to electronic filing discovery materials.

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