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Can I fax discovery requests to opposing counsel?

Informally, yes: attorneys routinely accept faxed discovery requests from opposing counsel without a fight. Formally, fax is not service of process under most court rules, and deadlines usually run from a recognized service method. If the case matters, serve discovery by a method the rules recognize, and use fax as the courtesy copy.

This is general information, not legal advice.

Is fax "service" of discovery under the rules?

Mostly no. In federal court, Rule 5(b)(2)(F) permits service by electronic means, but only with the other party's written consent. A fax to an attorney who has not consented is not service; it is a delivery. The response clock (30 days for interrogatories and document requests under the federal rules) runs from proper service, so a fax-only "service" can leave the deadline unsettled. Many states follow the same pattern: consent or a court order makes fax service effective, silence does not.

Why do lawyers fax discovery anyway?

Because between represented parties, discovery is about exchange, not gamesmanship. If you know opposing counsel, a fax puts the requests on their desk the same day the original goes out, and nobody objects. The fax also serves a strategic purpose: the sending lawyer gets a transmission report showing the date, time, and page count, which settles later arguments about what was sent when.

ChannelCounts as service?SpeedProof of delivery
Fax (no consent)No, in most jurisdictionsSame dayTransmission report
Fax (with written consent)Yes, where rules allowSame dayTransmission report plus consent letter
MailYesDaysCertificate of service
Hand deliveryYesSame daySigned acknowledgment or declaration
E-service portalYes, in consenting courtsSame daySystem-generated filing receipt

What if opposing counsel never agreed to accept faxes?

Ask in writing before you rely on it. A one-sentence letter ("please confirm you accept service of discovery by fax at this number") and a confirming reply solve the problem permanently, and most firms agree because it saves them the same hassle. Without that paper trail, mail or hand-deliver the original and fax a courtesy copy with a cover sheet noting that the original is in the mail.

Do the response deadlines change if I fax?

This is the trap. Under rules that add mailing days to response time (five days under some state rules, or the old federal three-day mail rule), switching to fax can shorten the other side's deadline. Do not assume the fax and the mail original produce the same response date. Read the rule that governs the case you are actually in; state rules differ, and federal and state courts within the same city can use different counting methods.

What about faxing discovery responses, not requests?

The same logic applies in reverse. Responses served by fax without consent are still responses, but the proof of service becomes arguable. When you are the responding party, protect yourself: serve the response by a method the rules bless, keep the transmission report for your records, and file a certificate of service that states the method honestly. Judges forgive a courtesy fax; they punish a certificate that lies about service.

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