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Triggering the “Three Day Rule” – Hand Delivery is “Gratuitous”?

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District of Delaware Local Rule 7.1.2 provides that an answering brief be filed within 10 days (excluding intermediate weekends and legal holidays as provided by Fed. R. Civ. P. 6(a)) after the opening brief. But how does e-filing and service by electronic mail effect this rule? Judge Farnan recently answered that in the opinion , C.A. No. 03-199 (D. Del. Mar. 13, 2007) (Farnan, J.). The defendant in this case served plaintiff with its motion by hand delivery as well as electronically and therefore defendant argued that the service by hand delivery did not trigger the “three day rule” set forth in Fed. R. Civ. P. 6(e) which provides that service by electronic means adds three days to the period set forth in 6(a). Id. at 4. The Court found that “electronic service controls” and is “generally preferable to mail and hand delivery.” Id. The Court further went on to state that “[W]hen a party chooses electronic means or mail delivery, separate hand delivery is gratuituous and has no effect on response times.” Id. Hence, the plaintiff’s response was timely filed.

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