Advisory Commission Comments to Rules 5.01-5.06

Advisory Commission Comments

Rule 5 requires service of pleadings filed subsequent to the original complaint, orders, written motions, discovery papers, and other papers, upon each of the parties. Exceptions are made with respect to motions which may be heard ex parte (Rule 5.01), and with respect to pleadings filed by various defendants when the court orders that, because of numerous defendants, pleadings need not be served as between defendants (Rule 5.04). The Rule spells out the details of how service shall be made, and provides that proof of service is accomplished by certificate of a member of the bar, or by affidavit of the person serving the copy, or by other proof satisfactory to the court. The details set out in the Rule are designed to give every reasonable assurance that a copy of the pertinent papers in the suit actually reach adversary parties through their counsel or directly.

The Rule provides that copies need not be served on parties adjudged in default for failure to appear; but if the pleadings assert new or additional claims for relief against such parties in default, copies must be served upon the parties. Rule 55 sets out the circumstances and procedures for entering judgment by default for failure to appear.

5.01In litigation involving more parties than a single plaintiff and single defendant, it sometimes is essential for every party to keep abreast of all procedural developments despite the lack of a direct effect on each litigant. Consequently, the Commission advises deletion of the “affected thereby” language; all papers must be served on all parties “unless the court otherwise orders.” [1984.]

5.05. Often there is no utility in filing discovery papers with the clerk, and the amendment gives parties and judges the option of abandoning the requirement. A local court rule could constitute an “order” on the court’s initiative. Because filing of such papers may be a necessary step toward offering them into evidence, however, the final wording is included. “or for use in the proceedings.” [1984.]

Advisory Commission Comment [1997]

The amendment conforms pro se prisoner filings of trial court papers to the provision in T.R.A.P. 20(a) concerning appellate court papers.

Advisory Commission Comment [2000]

Pro se litigants who are incarcerated in correctional facilities cannot ensure the timely mailing of their mail and, as a consequence, cannot control the timely filing of their legal papers. This amendment deletes the previous, pro se prisoner-filing provision contained in Rule 5.06 and substitutes a clarified provision. The pro se prisoner-filing provision applies to all “papers required or permitted to be filed pursuant to the rules of civil procedure,” including the filing of a complaint under Rule 3.

Court and Advisory Commission Comment. It is the public policy of the State of Tennessee to encourage recycling and the use of recycled products and materials. This policy is reflected in the Tennessee Solid Waste Planning and Recovery Act (title 68, ch. 211, part 6) and in the Solid Waste Management Act of 1991 (title 68, ch. 211, part 8). The underlined portion of Rule 5.06 denotes the addition to Rule 5.06 effective July 1, 1993, in which the Court recommends and encourages that all papers filed in the Tennessee courts be submitted on recycled paper.

Advisory Commission Comment [2004]

An additional method of service of pleadings and other papers, by facsimile transmission, is limited by the conditions in Rule 5A on filing by facsimile. For example, such service is limited to those documents which may be filed by facsimile transmission. Also, the sender bears the risk of ineffective transmission.

Advisory Commission Comment [2010]

The Commission is aware that many attorneys serve documents on one another electronically but, because the current rule does not provide electronic service is sufficient service, also send a paper copy of the document. This rule change is designed to allow attorneys to accomplish service of pleadings and other papers electronically without the need to send a physical copy.

The requirement that the sender shall include language in the subject line designed to alert the recipient that a document is being served under this rule is intended to reduce the possibility that the recipient might overlook the service of a document. Words in the subject line to the effect of “TRCP Rule 5 Service of Document in Smith v. Jones” are sufficient.

Adobe PDF was chosen as the format because it is required for federal court filings and virtually all attorneys have ready access to it. Of course, the parties may stipulate to the use of a different format.

The mailing or hand delivery of a certificate was included out of concern, well-founded or not, that an email transmitting a document could be lost in cyberspace. The certificate requirement puts the receiving attorney on notice that a document has been sent and, if the document was not received, will allow that attorney to initiate a process for promptly obtaining a copy of it.

The rule provides a mechanism for a court to order, for good cause shown, that electronic service of pleadings and papers not be permitted in a particular case.

Advisory Commission Comment [2012]

The first paragraph of Rule 5.02 is amended to address service of pleadings and other papers in cases in which an attorney has filed a notice of limited scope representation or a notice of limited appearance for an otherwise self-represented person, pursuant to Rule 11.01(b).

Advisory Commission Comment [2020]

Advisory Commission Comments [2020]. Rule 5.02(3) has been added to provide for electronic service through a court’s E-Filing system, provided that such a system has been authorized by such court pursuant to Rule 5B of these rules. The amended rule authorizes E-service through a court’s electronic transmission facilities as to any registered user of such facilities. An attorney or party who chooses to become a registered user of a court’s E-filing system shall be required to accept service through the court’s electronic facilities unless otherwise ordered by the court in that particular case. As a result of this amendment, service may be effectuated under these rules by any of three means. the conventional means of service authorized in Rule 5.02(1), by electronic transmission or email as authorized in Rule 5.02(2), or by E-service pursuant to Rule 5.02(3) in those courts that have adopted an E-filing system that complies with Rule 5B and the technological standards promulgated by the Tennessee Supreme Court.

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