Friday, April 18, 2014

Virginia Federal Court Allows Service Of Process By Facebook, LinkedIn & Email


Should the mere fact that a defendant is a "technology" company that embraces the latest technologies and conducts its primary business almost exclusively online subject that defendant to different service of process standards? 

Maybe so if that defendant has no known physical address where service of process can be reasonably served. 

It appears a Virgina Federal Court Judge agrees.  In the following case before the court the plaintiffs petitioned the court to allow service by alternative means pursuant to FRCP 4(f)(3)

WHOSHERE, INC., Plaintiff,
v.
GOKHAN ORUN d/b/a/ WhoNear; Who Near; whonear.me, Defendant.

Civil Action No. 1:13-cv-00526-AJT-TRJ.
United States District Court, E.D. Virginia, Alexandria Division.

The court analyzed the acceptability of plaintiffs’ methods and found that:
In applying Rule 4(f)(3), a court may tailor the method of service to the circumstances so long as that method 1) is not prohibited by international agreement and 2) comports with constitutional notions of due process.  Courts therefore have flexibly applied Rule 4(f)(3) to authorize service by differing modes of electronic and online communications including and social networking sites like Facebook.
- See more at: http://it-lex.org/virginia-court-allows-service-process-facebook-linkedin-e-mail/#sthash.oDfoR4pT.dpuf
In applying Rule 4(f)(3), a court may tailor the method of service to the circumstances so long as that method 1) is not prohibited by international agreement and 2) comports with constitutional notions of due process. Courts therefore have flexibly applied Rule 4(f)(3) to authorize service by differing modes of electronic and online communications including and social networking sites like Facebook.


The court analyzed the acceptability of plaintiffs’ methods and found that:
In applying Rule 4(f)(3), a court may tailor the method of service to the circumstances so long as that method 1) is not prohibited by international agreement and 2) comports with constitutional notions of due process.  Courts therefore have flexibly applied Rule 4(f)(3) to authorize service by differing modes of electronic and online communications including and social networking sites like Facebook.
- See more at: http://it-lex.org/virginia-court-allows-service-process-facebook-linkedin-e-mail/#sthash.oDfoR4pT.dpuf
The court analyzed the acceptability of plaintiffs’ methods and found that:
In applying Rule 4(f)(3), a court may tailor the method of service to the circumstances so long as that method 1) is not prohibited by international agreement and 2) comports with constitutional notions of due process.  Courts therefore have flexibly applied Rule 4(f)(3) to authorize service by differing modes of electronic and online communications including and social networking sites like Facebook.
- See more at: http://it-lex.org/virginia-court-allows-service-process-facebook-linkedin-e-mail/#sthash.oDfoR4pT.dpuf
Additionally, the court finds that service of process by email and social networking sites is particularly appropriate here considering that defendant is in the technology business and allegedly identifies himself as a "mobile technology enthusiast" on his LinkedIn page. See Philip Morris v. Veles Ltd., 2007 WL 725412 at *3 (S.D. NY Mar. 12, 2007) (authorizing service by email and fax where "defendants conduct business extensively through their Internet website and corresponds regularly with customers via email"); See LinkedIn, http://www.linkedin.com/in/gokhanorun (last visited February 11, 2014).
At what point will state courts adopt rules of court or civil procedure like FRCP 4(f)(3)?  When or if they do, who will be there to fight it for the private process serving industry?  And if this is what the courts,the judiciary and our customers want, might the industry be better served by finding a way to require that electronic service be only performed by a properly registered, bonded, licensed or otherwise lawful private process server?  What say you?

by Jeff H. Karotkin
In applying Rule 4(f)(3), a court may tailor the method of service to the circumstances so long as that method 1) is not prohibited by international agreement and 2) comports with constitutional notions of due process.  Courts therefore have flexibly applied Rule 4(f)(3) to authorize service by differing modes of electronic and online communications including and social networking sites like Facebook. - See more at: http://it-lex.org/virginia-court-allows-service-process-facebook-linkedin-e-mail/#sthash.1zsoky3p.dpuf

Saturday, April 12, 2014

Potential Pitfalls of Serving Documents Electronically - Service via DropBox Not Lawful

Australian Court Rules that Electronic Service of legal documents via the product "DropBox"  was NOT lawful. 

I believe that at a minimum Consent, Acknowledgment, and Proof of Receipt is a must if eService is agreed to by the parties.  A best practice ought to be that  disinterested Third-Party (process server) that can attest to the facts of the transaction whether physical or electronic is a necessary to ensure that all parties due process rights are protected.  

An excellent assessment by the law firm Hopgood & Ganim of this case can be found here:

If parties want to avoid arguments regarding service by electronic means (including use of facilities such as drop box), then specific provision should be made to this effect in the contract.
Is a dropbox an acceptable electronic communication?
The critical issue is whether, given the use of the drop box facility and the emails, Basetec had duly served the adjudication application.
The contract between the parties did not make provision for the service of documents, nor was there any suggestion that the parties had agreed that the adjudication application could be served as it was (notwithstanding that the parties had used drop box in earlier correspondence).
McMurdo J also held that he did not consider that section 39 of the Acts Interpretation Act allowed for service by email.
However, the Judge was content to allow that section 11 of the Electronic Transactions (Queensland) Act 2001 did allow for the adjudication application to be served by email.

Critically, he nevertheless held that in the circumstances, section 11 did not authorise the service of the adjudication application inclusive of the material within the drop box for two reasons:
  1. CGE had not agreed to be electronically served; and
  2. the material within the drop box was not part of an electronic communication as defined. None of the data, text or images within the documents in the drop box was itself electronically communicated, or in other words, communicated by “guided or unguided by electromagnetic energy”. The Judge found that there was an electronic communication of the means by which other information in electronic form could be found, read and downloaded at and from the drop box site. 
The key issue was that the Judge found that if the material had been attached to the email, rather than delivered by the use of drop box, it would have been an electronic communication and therefore service would have been successful. 

The Judge also held that the documents in the drop box file could not be said to have been left at or sent to CGE’s office (at least until CGE went to the drop box site and opened the file) and probably not until its contents had been downloaded to a computer at CGE’s relevant office.

#jeff karotkin

Friday, February 7, 2014

What Is The Most Pressing Issue For Process Servers Today?

 
What Is The Most Pressing Issue For Process Servers Today?
 
That depends upon what part of the country you operate in and the type of process that you typically serve.  Not all process servers are the same.  Many in the process serving business are primarily investigators and process serving is a sideline business.  And still others serve almost exclusively debt collection cases or foreclosure cases.  So I guess the answer to my question would vary depending upon who you ask.   Right?

Not so fast.  I will suggest to you that the answer has nothing to do with the types of process you serve or where you are located.   The answer to the question is INNOVATION or the lack thereof.  

Ask yourself if innovation in the legal support and process serving industry adding to or subtracting from your opportunity?  Those that think or fear that innovation is subtracting from the opportunity will likely cease to exist.  Some might argue that innovations like Electronic Filing and Electronic Service of Process will eliminate jobs and opportunity in the legal support and process serving industry?
 
I believe that some in our industry see more opportunity than ever.  Those folks that see opportunity rather than threats will capitalize on the rapidly changing landscape and reinvent themselves and their industry.  They will innovate. 
 
We know that there is a significant demand for court filing and service of process.  There are probably hundreds of millions process serving and court filing transactions that are being fulfilled physically in the United States every year... I would suggest that the fact that most of those transactions are being fulfilled physically represents massive opportunity for innovation and disruption.  
 
I believe that almost all court filing in California and in several other states will be filed by electronic means in the next 5-7 years; perhaps sooner.  With electronic filing gaining in popularity so too has the demand for electronic service between parties.   I believe that it would na├»ve to think that traditional service of process won't follow the same evolutionary path as court filing and notice/service between opposing parties.   Those that follow this blog know well that the evolution I am referring to has been underway for several years. 
 
Back to the original question. What is the most pressing issue facing the process serving industry?  If you believe as I do that the most pressing issue is our ability to innovate and remain relevant in the digital age; then you stand a chance of being part of the solution that includes electronic process serving and court filing companies.    
 
I am not suggesting that regulatory issues, process server licensing, legislative issues and sewer service are not important, they are.  Those issues have always been part of the challenges facing the industry.  I am saying that your ability to innovate and reinvent your business is the most pressing issue today and it is going to determine the future success of your company and perhaps the industry.  
 
Perhaps Steve Jobs said it best "Innovation Distinguishes Between a Leader and a Follower".  Which one are you?
 
by: Jeff Karotkin

Thursday, September 12, 2013

Electronic Service of Process - Long Overdue Disucssion!

For some time now I have been writing on my Blog and on my facebook group SOPLF about Electronic Service and the challenges facing the industry, so much so, that I have made some in the process serving profession uncomfortable. A small group of individuals would rather I not provide my thoughts on these topics. A few have even seen fit criticize my motives for doing so on the social media platforms and list-serves. They have every right to do so. I just wish they were willing to encourage folks to think for themselves rather than discouraging a robust discussion of the issues facing the industry.
 
CALSPro gets it!  CALSPro is encouraging all in the industry to attend the California Association of Legal Support Professionals (CALSPro) annual conference later this month in Lake Tahoe, NV. Almost the entire conference is geared toward a robust and thoughtful discussion about the threats and opportunities facing the industry. 
 
Why would anyone want to discourage a discussion and exchange of ideas on what is arguably an important issue facing the private process serving industry? These folks believe that the threat of Electronic Service is "much a do about nothing".  Too bad most in the national leadership don't appear to get it. The only time they did was when I was involved and I did all the heavy lifting.  But I digress. 
 
Maybe they just don't like that someone other than themselves is expressing their views.   In my opinion that kind of attitude is irresponsible especially for those that might be in a position of authority for the private process serving profession. 

If nothing else I have gotten their attention and hopefully they are starting to acknowledge that we as a industry need to start paying more attention to electronic service of process and other challenges.  My intent all along has been to raise awareness so that the those in the industry  start to formulate strategies to help insure a path forward.

I will continue to seek out information about this and other challenges facing the industry so that process servers everywhere can make up their own minds and will hopefully be more informed.
 
The commentary and opinions expressed here are mine alone and not that of CALSPro or any other group or organization.
 
by Jeff Karotkin
 

Tuesday, September 10, 2013

Service of Process via Social Media - Threat or Opportunity?


An Australian appellate court recently ruled that rapper Flo Rida could not be served via Facebook in a breach of contract lawsuit. Reversing a lower court's decision, the court ruled the social media site was not an appropriate means to serve notice.

This is the second such similar ruling coming out of the Federal court in the last few months.
 
Those that have followed this Blog for the last few years know I have opined about Service of Process via electronic means and service via social media in particular. Though I firmly believe that the service of process as we know it is rapidly approaching a tipping point where the legal community is going to embrace service by electronic means, I am also firmly in the camp that believes that service via social media should only be employed as a last resort.

The fact is service via social media is totally unreliable as a primary manner of service.  Let me explain… Unless the intended recipient formally acknowledges receipt there is no way to ensure that they received the service if a message were posted to their social media account.  What’s worse is service via social media really only gives the intended recipient an opportunity to know that they have been sued or “notice” that they have been sued/served.  Unless the service documents like a Summons and Complaint are posted intact on the recipient’s social media page or inbox, the recipient is not receiving the actual documents.  I would argue that it is the actual documents with the courts stamp and/or seal that must be provided to the recipient for the service to be lawful.  Service via social media is in my opinion no better than service by publication and is at best problematic.  I would hope that the Courts continue to only consider this manner of service after all other efforts have been exhausted. 

That said, I can envision a better more reliable, trusted and secure method of electronic service that embraces a basic tenant of providing notice and giving a party their due process… the manner of service whether physical or electronic MUST be reasonably calculated to provide ACTUAL notice.
 
I can envision service by electronic means that embraces that concept and also ensures that it is performed by a person or entity that is a disinterested third party that can attest to the facts surrounding the ACTUAL service event.  This electronic version of a disinterested third party would be responsible for the same role as a physical process server; they would ensure the proper person or entity received the service documents and that they knew what they received and that there was a verifiable audit trail that would hold up in court.  The electronic process server would also provide their client/customer with a proof, affidavit or certificate of service that documented the service event.  That document could also be provided to the courts as formal proof that the service event was performed lawfully. 

This topic has been discussed and debated by process servers, registered agents, attorneys and technologist for more than 10 years.   Someone or some entity will bring this vision to life and it will have a lasting impact on the industry.  Make no mistake it is only a matter of time, the first steps have been documented on my blog.  Here is one example of what is  already happening.  The only question I have is will process servers be a part of that evolution or not…

For more about my thoughts or vision related to this topic “Service of Process in the 21st Century” click here.
 by Jeff Karotkin
 

Thursday, August 29, 2013

New York City is Not Kind to the Process Serving Industry!

NYC Process Servers - Regulations Run-Amok?


Some have argued that this is a success story.  But for the efforts and $ of NYSPPSA and NAPPS the number of out of business process servers and process serving agencies would be a lot higher.   If this is model of a successful effort by a NAPPS and NYSPPSA I would hate to see a failure. 

All kidding aside, this is a tragedy that was addressed by some smart well-meaning folks.  Unfortunately, the combination of a few large agencies that did commit sewer service and an environment where the DCA regulates anything that moves was too much to overcome.  It is likely that no amount of money would have made a difference. 
You can find copies of charges issued to process servers in NYC and settlements here.  Scary list of charges and settlements... Name a process server in NYC or an Agency they are probably on the DCA's list. 

by jeff karotkin

Thursday, August 22, 2013

FEWER FEDERAL SUBPEONAS - COMING SOON?

FEWER FEDERAL SUBPEONAS - COMING SOON?
 


A few days ago I posted to this group a message about the proposed amendments to the Federal Rules of Civil Procedure. I specifically cited a proposed change to Rule 4 that would reduce the number of days to effect service from 120 to 60 days. This change probably does not have an adverse impact upon the process serving industry.

The published proposals also include changes to the Federal discovery rules, that if passed could have a tremendous impact on the timing of civil discovery and could severely limit the amount of discovery that will allowed in a Federal case. Proposed amendments to Rules 30 and 31 reduce the number of depositions from 10 to 5 and the time limit for each deposition from seven hours to six hours. Rule 33 would be revised to lower the number of interrogatories from 25 to 15. Parties would still be able to seek leave of court to exceed these limits.

by Jeff Karotkin

 

Thursday, August 15, 2013

Proposed Amendments to the Federal Rules of Civil Procedure - Rule 4 Summons



Here is yet another example that if you want the most current, relevant and actionable information available related to the process serving industry you should follow my blog and Facebook group... To be fair CALSPro and ServeNow are also excellent resources for information.

Please visit the link provided to see the Proposed Civil and Bankruptcy Rule Changes.  Federal Rule 4 Summons is among those that may be changed.  Specifically section (m) Time Limit for Service. The proposed change would reduce the time allowed to serve the Summons from 120 days to 60 days.   This change, together with the shortened times for issuing a scheduling order set by amended Rule 16(b)(2), will reduce delay at the beginning of litigation.

On August 15, 2013, the public comment period opens for the proposed amendments to Civil Rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84, and Appendix of Forms. The public comment period closes on February 15, 2014.
If you are inclined to comment you can do so here.

by: Jeff H. Karotkin

Tuesday, May 28, 2013

Service of Process on Foreign Manufactures - To be performed in USA if Bill passes

Legislative Update -SERVICE OF PROCESS ON FOREIGN MANUFACTURERS



Current law allows foreign companies selling defective products in the United States to dodge service of process, and they do. When a foreign company does that, it puts all of the burden on American retailers to account for any harm that is caused because of the defective product. That is not fair to American companies, and it's not fair to American citizens.

This bill streamlines service rules so foreign companies selling products here in America can be served with process here in America.

This is at least the 3rd separate session of Congress that a Bill like this has been introduced.  If this Bill were to pass as currently drafted it might create a huge increase in service of process domestically.  United State House Bill 1910 of the 213th Congress seeks to fix what some think is an unfair and broken system. Click link for a summary and text of the Bill  http://thomas.loc.gov/cgi-bin/bdquery/z?d113:h.r.01910:

by SOPLF - Jeff Karotkin

Friday, May 24, 2013

NY Federal Class Action Lawsuit Alleges Racketeering & Sewer Service Filed May 1, 2013

Earlier this month a nationally recognized law firm Hughes, Hubbard & Reed LLP filed a Federal Class Action law suit alleging FDCPA violations and Racketeer Influenced and Corrupt Organizations Act (RICO) against debt collectors and their law firm. 

The Complaint alleges the defendants were engaged in a scheme involving improper litigation activities and the hiring of process serving agencies engaged in Sewer Service.  

The complaint mentions the names of the individuals process servers and agencies it alleges were part of the scheme. 

For example, some of the affidavits of service falsely attested that the process server effected "personal service" on the defendant at an address where that person did not live at that time, or never lived.

Other affidavits of service attested that the process server served the defendant at an accurate address but by " substitute service" on a fictitious person, such as a non-existent relative.


Other affidavits of service reported that the process server effected "nail and mail" service on an address where the defendant never lived.


On information and belief, Defendants knew that the affidavits of service were highly likely to be false
.
On information and belief, Defendants knew that the vast majority of affidavits of
service supporting Defendants' applications for default judgment were fraudulent.
This case like the one filed in CA earlier this month could have a lasting impact upon the both the debt collection industry and the process serving industry.  Though there have been Sewer Service allegations for decades it was the American Legal Process case filed by the NY Attorney General that resulted in the far reaching regulations that currently face the NYC process serving industry.