Serving and filing federal papers: six methods, mandatory e-filing, and the four things you must redact

Rule 5 governs everything served after the complaint — motions, discovery, briefs, notices. Rule 4 governs the summons and complaint, and the two should not be confused: the six methods below are not available for starting a case.

Rule 5.2 then adds a privacy overlay that catches people out, because the redaction obligation falls on whoever makes the filing, party or not.

Serving the attorney, not the party

Rule 5(b)(1): "If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party."

Serving a represented party directly is a defect, and the exception requires a court order.

The six methods

Rule 5(b)(2): a paper is served by:

(A) handing it to the person; (B) leaving it: (i) at the person's office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or (ii) if the person has no office or the office is closed, at the person's dwelling or usual place of abode with someone of suitable age and discretion who resides there; (C) mailing it to the person's last known address — in which event service is complete upon mailing; (D) leaving it with the court clerk if the person has no known address; (E) sending it to a registered user by filing it with the court's electronic-filing system or sending it by other electronic means that the person consented to in writing — in either of which events service is complete upon filing or sending, but is not effective if the filer or sender learns that it did not reach the person to be served; or (F) delivering it by any other means that the person consented to in writing — in which event service is complete when the person making service delivers it to the agency designated to make delivery.

Three completion rules to keep straight, because they drive every deadline that runs from service:

And method (E) has a unique failure condition: service "is not effective if the filer or sender learns that it did not reach the person to be served." A bounced notification you know about defeats the service.

Note also that filing with the court's e-filing system serves every registered user — which is why a separate service copy is unnecessary in most federal cases.

Numerous defendants — Rule 5(c)(1): where an action involves "an unusually large number of defendants," the court may order that defendants' pleadings need not be served on other defendants, that any crossclaim, counterclaim, avoidance or affirmative defence in them will be treated as denied or avoided by all other parties, and that filing and serving on the plaintiff constitutes notice.

What must be filed — and what must not

Rule 5(d)(1)(A):

Any paper after the complaint that is required to be served must be filed no later than a reasonable time after service. But disclosures under Rule 26(a)(1) or (2) and the following discovery requests and responses must not be filed until they are used in the proceeding or the court orders filing: depositions, interrogatories, requests for documents or tangible things or to permit entry onto land, and requests for admission.

That prohibition is the one people breach. Initial and expert disclosures, and the four listed discovery devices, are served but not filed until used.

Certificates of service — Rule 5(d)(1)(B):

No certificate of service is required when a paper is served by filing it with the court's electronic-filing system. When a paper that is required to be served is served by other means: (i) if the paper is filed, a certificate of service must be filed with it or within a reasonable time after service; and (ii) if the paper is not filed, a certificate of service need not be filed unless filing is required by court order or by local rule.

So the certificate is only needed for non-electronic service — and for unfiled papers, usually not at all.

Electronic filing

Rule 5(d)(3)(A) — represented parties:

A person represented by an attorney must file electronically, unless nonelectronic filing is allowed by the court for good cause or is allowed or required by local rule.

Rule 5(d)(3)(B) — unrepresented parties: a person not represented by an attorney

(i) may file electronically only if allowed by court order or by local rule; and (ii) may be required to file electronically only by court order, or by a local rule that includes reasonable exceptions.

The asymmetry is deliberate: e-filing is mandatory for lawyers and permissive for self-represented litigants, and any local rule compelling the latter must carry reasonable exceptions.

Rule 5(d)(3)(C) — signing: a filing made through a person's electronic-filing account and authorized by that person constitutes that person's signature, as the rule provides.

Nonelectronic filing — Rule 5(d)(2): a paper not filed electronically is filed by delivering it "(A) to the clerk; or (B) to a judge who agrees to accept it for filing, and who must then note the filing date on the paper and promptly send it to the clerk."

Rule 5.2: what must be redacted

Rule 5.2(a): unless the court orders otherwise, in an electronic or paper filing containing an individual's Social Security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number, "a party or nonparty making the filing may include only":

(1) the last four digits of the Social Security number and taxpayer-identification number; (2) the year of the individual's birth; (3) the minor's initials; and (4) the last four digits of the financial-account number.

Five categories in, four permitted forms out. Note two things.

It binds a "party or nonparty making the filing." A non-party producing documents to the court is caught.

And it applies to paper filings too — this is not an e-filing rule.

Rule 5.2(b) — six exemptions. The redaction requirement does not apply to:

(1) a financial-account number that identifies the property allegedly subject to forfeiture in a forfeiture proceeding; (2) the record of an administrative or agency proceeding; (3) the official record of a state-court proceeding; (4) the record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed; (5) a filing covered by Rule 5.2(c) or (d); and (6) a pro se filing in an action brought under 28 U.S.C. §§ 2241, 2254, or 2255.

Exemptions (2) through (4) matter in practice: an administrative record or a state-court file attached as an exhibit need not be redacted, which saves considerable work in appeals from agency decisions.

Rule 5.2(c) — remote access limits: in an action for benefits under the Social Security Act, and in actions or proceedings relating to an order of removal, the rule limits remote electronic access as it provides.

The routine sequence

How the federal rules compare

The California contrast on mail extensions is worth remembering if you practise in both: CCP 1013 extends time generally, but CCP 1005(b) excludes it from motion notice periods and supplies its own five-, ten- and twenty-day figures. The guide on California motions for reconsideration sets that out.

A short checklist

1. Serve the attorney unless the court has ordered otherwise.
2. Know when your method completes service — mailing, sending, or delivery to the designated agency. Every responsive deadline runs from that moment.
3. If you learn an electronic service did not arrive, it is not effective. Re-serve.
4. Do not file disclosures or the four listed discovery devices until they are used or the court orders it.
5. Skip the certificate of service for e-filing system service — and include one for any other method on a filed paper.
6. File electronically if you are represented, unless you have good cause or a local rule says otherwise.
7. Redact before you file: Social Security and taxpayer-ID numbers to the last four digits, birth dates to the year, minors to initials, account numbers to the last four.
8. Check the Rule 5.2(b) exemptions before spending time redacting an agency or state-court record.
9. Remember the obligation reaches non-parties who make filings.

Where these rules live

• FRCP 4 — Summons
• FRCP 5 — Serving and filing pleadings and other papers
• FRCP 5.1 — Constitutional challenge to a statute
• FRCP 5.2 — Privacy protection for filings made with the court
• FRCP 6 — Computing and extending time
• FRCP 11 — Signing pleadings; representations to the court; sanctions
• FRCP 26 — Duty to disclose; general provisions governing discovery
• FRCP 79 — Records kept by the clerk

Local rules and each district's CM/ECF procedures add requirements on top of these. This page explains what the rules say. It isn't legal advice.