It's a bit of a slow news day for the subjects we typically cover, so I wanted to write about an exciting and under-covered topic: Certificates of Service in the District of Delaware!
A Certificate of Service (COS) is a document at the end of the filing that says who the document was served on. Back in the days of paper filing, it was important to show who received a copy of a document.
Now we have CM/ECF, the Court's electronic filing system, which automatically generates a Notice of Electronic Filing (NEF) when anything is filed. Federal Rule of Civil Procedure 5(d)(1)(B) specifically says that "[n]o certificate of service is required when a paper is served by filing it with the court’s electronic-filing system."
In Delaware, the Court's CM/ECF user manual and administrative procedures say that a COS is required for only two kinds of filings:
- Filings in a case that involves parties without counsel who are registered users of CM/ECF; and
- Sealed filings.
It makes sense that the rules require a certificate of service when parties are not registered users of CM/ECF because everyone involved needs to know that those parties received a copy of the document. Likewise, sealed filings are not available to other parties through CM/ECF, and the COS provides a way to tell who received copies.
But for all other purposes, the Court's guidance says that a COS "shall not be filed":
B. Proof of Service . . . In cases in which all parties and/or counsel are registered as users with CM/ECF, the NEF shall serve as the certificate of service of the filed document, and a separate certificate of service [separate from the NEF] shall not be filed.
CM/ECF User Manual, Revised May 31, 2018. FRCP 5 and the Court's other guidelines, including the local rules and the Court's separate CM/ECF Administrative Procedures, are all consistent with this. I have seen no rule or case to the contrary.
(Note that I'm discussing a "certificate" of service here, not a "notice" of service, which is another type of filing.)
Some Local Firms Still Put Certificates of Service on Everything—Why?
In many cases that I've been in, every single filing from the other side has a certificate of service attached, despite the Court's guidance to the contrary.
Why? I've heard variations of:
- "We've always done it this way."
- "That way we know who got it."
Neither of those explanations carries water. As to the first, obviously, the reason firms have "always done it this way" is that it was required back in the days of paper filings. Those days are gone. Now the Court says not to do it. This explanation boils down to "we have been really slow to adapt to electronic filing."
As to the second explanation, from what I've seen, the error rates on certificates of service are high. The certificate is typically filed before the document is actually served—so even if it is reviewed carefully, the attorney reviewing it can't control what happens in the future.
In other words, the fact that a person is marked on the certificate of service does not always mean that whoever served it necessarily remembered to include them on the later e-mail (or that they used the same e-mail address listed on the COS). Likewise, people are often served who are not listed on the COS.
If the document is not required, is often prone to error, and may not perfectly reflect who was served, what value does it have?
It's Just One Sheet of Paper, Why Should We Care?
It's true that it is typically just one or two sheets of paper per filing. But it takes attorney and staff time to make sure that the COS is correct for each filing, and that time ends up being billed to the client while adding zero value.
I don't think firms are intentionally wasting their clients' money, but I highly doubt that clients would want to pay for staff and attorneys to review a COS for each filing, given that it is contrary to the Court's guidelines.
And yes, it is one sheet of paper per filing, but anyone who has lugged boxes of mostly-unused documents to and from the courthouse knows that we really don't need any more paper in litigation than we already have.
So, attorneys, next time you find yourself spending time reviewing a certificate of service for a public filing, consider whether it is actually worthwhile!
(And please feel free to contact me to tell me why I'm wrong—I'll happily post it here!)
P.S. this is not intended as legal advice for any specific case; be sure to check the rules yourself, and see our disclaimer.
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