Didn’t Get a Response to Discovery Served by Mail Because It Was eFiled?
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.
When I wrote this article in 2017, I called the eFile office and was told that discovery documents are not to be filed unless directed by a judge. The woman said that the list of discovery documents in the dropdown window is there because judges sometimes request that discovery documents be eFiled.
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.
Since everyone seems to have been uploading discovery documents and I like having a record of them, we are now also eFiling discovery documents.
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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Phil Franckel is well-known in New York and has been a personal injury lawyer since 1989. He is a Founding Partner of 1-800-HURT-911, LLP®, the Personal Injury Dream Team™, and a former Member Board of Directors of the New York State Trial Lawyers Association. He has an Avvo Top 10 Rating, Avvo Client’s Choice Award with all 5-star reviews, Avvo Top Contributor Award, Multi-Million Dollar Trial Lawyers Award, and others. See Mr. Franckel’s bio for areas of expertise.