Re-Writing Nevada’s Rules of Civil Procedure, Part 3: Tracking Time

Tracking deadlines should not be difficult, but it could be easier.

  1. Make computing time simpler.

Computing time per NRCP 6(a) seems to be a perpetual problem for some; it generated two prior posts.[1]  Personally I do not consider it difficult to compute and most case management platforms will automatically compute the deadlines.  Regardless, computing time could be made simpler.

In 2009 FRCP 6(a) was revised to eliminate the distinction between how deadlines were calculated if the period of time was 11 days or less as opposed to 12 days or more.  Instead, all deadlines are now calculated by simply counting days, no matter if they are business days.  Nevada would benefit from incorporating parts of FRCP 6(a).

Rule 6(a):  In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute specified in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a nonjudicial day, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a nonjudicial day, or, (1) exclude the day of the event that triggers the period; (2) count every day, including intermediate Saturdays, Sundays, and legal holidays; and (3) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.  when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the district court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. Unless the court orders otherwise, if the clerk’s office is inaccessible on the last day for filing, then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and nonjudicial days shall be excluded in the computation except for those proceedings filed under Titles 12 or 13 of the Nevada Revised Statutes.

This change would require restating some deadlines within the NRCP.  These rules would need to be revised to extend the deadlines from 10 to 14 days:  NRCP 8(e), 12(a)(4)(A), 12(a)(4)(B), 14(a), 15(a), 38(c), 50(b), 50(c)(2), 52(b), 53(e)(2), 56(c), 58(e), 59(b), 59(c), 59(d), 59(e), 62(a), 68(a), 68(d), 68(e), and 68(h).  There may be others, but those are what I found.

  1. Why are 3 days added for e-service if e-service is mandatory?

NRCP 6(e) presently provides that whenever a party has a right to do something or is obligated to do something within a certain period of time after being served with something, 3 days are automatically added to that period if “the notice or paper is served upon the party by mail or by electronic means….”  I understand by mail, I do not understand the rationale for the electronic means.  This rule was last amended in 2004, effective January 1, 2005.  At the time, the federal PACER system had been operational for approximately 4 years.  Electronic docketing, filing, and service in state courts was still relatively limited.  The computing capacity and storage was far less than that available in 2017.  It was probably also far more expensive in 2005 in terms of per unit pricing.

However, by 2017 Nevada’s appellate courts and its two largest judicial districts have implemented electronic filing.  The largest judicial district has implemented mandatory electronic filing, as well as and service of documents that are never filed with the court.  Electronic filing and service programs can track who was served, if the recipient received the service email, and if the recipient downloaded the document served.  Email addresses are still free from major providers like Google and Yahoo, as they have been for many, many years.

At this point, the technology has become pervasive and reliable.  There is not persuasive reason why 3 extra days are necessary when electronic service is instantaneous and trackable.  NRCP 6(e) could be revised to read if “the notice or paper is served upon the party by mail or by electronic means….”

Notably, the federal courts have already incorporated this amendment.  In 2016 FRCP 6(d) was “amended to remove service by electronic means under Rule 5(b)(2)(E) from the modes of service that allow 3 added days to act after being served.”

Similarly, NRCP 11(a) should be revised to require the lawyer’s e-mail address be listed in the caption.  If electronic service is mandatory, there is no reason to exclude the email address from the caption.  NRCP 11(a) could be revised, in relevant part, to state: “Each paper shall state the signer’s address, and telephone number, and email address, if any.

NRCP 5(b)(2)(D) could also be revised to acknowledge the fact that electronic service is mandatory in the Eighth Judicial District.  A party is deemed to have consented to electronic service has no write to revoke it.

Rule 5(b)(2)(D): Delivering a copy by electronic means in judicial districts where electronic service is mandatory, or if the attorney or the party served has consented to service by electronic means. Service by electronic means is complete on transmission.  If electronic service is not mandatory in the judicial district where the filing occurs, provided,. however, a motion, answer or other document constituting the initial appearance of a party must also, if served by electronic means, be filed within the time allowed for service. In judicial districts where electronic service is not mandatory, Tthe served attorney’s or party’s consent to service by electronic means shall be expressly stated and filed in writing with the clerk of the court and served on the other parties to the action. The written consent shall identify: (i) the persons upon whom service must be made; (ii) the appropriate address or location for such service, such as the electronic-mail address or facsimile number; (iii) the format to be used for attachments; and (iv) any other limits on the scope or duration of the consent.

[1] June 3, 2013; June 14, 2016.