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The Illinois Supreme Court’s Recent Amendment to Rule 11 Permitting E-Mail Service by Consent Must Be Made Mandatory

The Illinois Supreme Court recently amended Rule 11, effective January 1, 2013, permitting service of documents between parties to a lawsuit (other than summons) by e-mail. As a practicing Chicago Personal Injury Attorney I was extremely pleased at the courts effort to recognize the benefit of e-mail technology as a time and money saving device for litigators. Unfortunately, the Courts press release failed to state that at the last minute the rule was made optional as between the litigants. I contacted the courts staff to determine why the rule was made optional and was advised that it resulted from the objection of certain unnamed attorneys who were allegedly challenged by e-mail technology. My initial reaction was disbelief that in 2013 a litigation attorney was unfamiliar with e-mail technology and file attachment.

For many years Rule 11 has permitted service of documents between attorneys with permission by facsimile. Even with the courts express permission several Chicago insurance defense attorneys refuse to provide their facsimile telephone numbers or communicate by said means. The sole purpose for this refusal is to make it as difficult as possible to serve letters, motions or other documents upon them. The new e-mail service amendment is a mere extension of the facsimile rule. If an attorney is not required to have a facsimile telephone number than why should he be required to have a regular telephone number? Until the passage of the subject amendment and amended Rule 131 there was no mandatory requirement that an attorney even have a telephone number. Perhaps attorneys should not be required to disclose their office address just a post office box.

As part of an earlier amendment to Rule 11 the court recognized the failings of the US Postal Service by permitting the use of express delivery services such as FedEx or UPS. There is no permission required for the use of these alternative services.

E-mail address disclosure and acceptance of service of papers by said means has long been mandatory in the federal courts. Should a Chicago personal injury attorney practicing in both federal and Illinois state courts be permitted to refuse the use of e-mail in the state court forum?

Litigation attorneys must be prepared to communicate with their opponents by all normal usual and customary means including, facsimile and e-mail. I respectfully request that Illinois Supreme Court revisit this issue as soon as possible permitting the use of e-mail and facsimile without consent.

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