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Thursday, October 2, 2014

Service of Process via Facebook…The New Paradigm?


Service of Process via Facebook…The New Paradigm?

by Mark Schwartz, One Legal LLC

Lately there’s been some chatter about service of process via social media, specifically Facebook.   In case you haven’t seen it, on September 18th, nypost.com published an article entitled “Judge Oks serving legal papers via Facebook.”   The article speaks to a “groundbreaking court ruling” in which Staten Island Support Magistrate Gregory Gliedman ordered a party to serve his ex-wife via Facebook.  The order, according to the judge, was the “first of its kind in New York, and also the first in the United States that didn’t involve an attempt to serve someone overseas.”
In 2011, Jeffrey N. Rosenthal, of The Legal Intelligencer, wrote an article entitled “You’ve Been Served – On Facebook?”  His article speaks to a Minnesota case, In re the Marriage of Jessica Mpafe v. Clarence Ndjounwou Mpafe (Hennepin County, MN No. 27-FA-11-3453), in which the court told the plaintiff not to waste her time with service via publication and instead “held that ‘publication on the internet’ was acceptable so long as it followed the same ‘information and timing’ requirements that would go into a newspaper.”  “Soon may come a time,” Rosenthal writes, “when service via Facebook isn’t the exception – it’s the rule.”  Okay, so we’re not there yet but perhaps it depends on your definition of “soon.”  Sorry, I couldn’t resist.  On a less flippant note I should point out that Mr. Rosenthal’s article also provides a concise analysis of what he calls “the origin of American service law:  the U.S. Constitution.”



In November of 2011, Lisa McManus, of LexisNexis Legal Newsroom, published a post about the same case.  She voices a valid concern as well:  how does one know that the person who holds the account is really the person he or she claims to be?  “On the other hand,” she writes, “neither notice by publication nor public posting provide actual notice to defendants.”  That’s a great point and the essence of the judges holding in Mpafe; service via the internet “provides a cheaper and hopefully more effective way of finding respondent.”   I always found it interesting that service via publication, which is authorized by statute here in CA (Code of Civil Procedure 415.50), culminates with publishing an image of the summons in a newspaper “that is most likely to give actual notice to the party to be served.”  Even if the defendant doesn’t see it, or answer, a judgment can still be entered.  So in reality it doesn’t matter if the defendant receives notice, does it?   By the way, Ms. McManus also provides some additional resources from Australia, Canada, New Zealand the U.K.  In those examples you’ll notice a theme:  that service via Facebook takes place via court order, either after traditional service has been attempted or because it could not be.  

In a 2013 Federal case, Federal Trade Commission v. PCCare247 INC., Dist. Court, SD New York 2013, the FTC asked the court “for leave to effect service of documents other than the Summons and Complaint by alternative means…of both email and Facebook.”  The court did decide that service via email did comport with due process but raised the point that if the plaintiffs would have asked the court to serve via Facebook only, then it wasn’t quite as clear as to whether due process was satisfied.  “To be sure, if the FTC were proposing to serve defendants only by means of Facebook, as opposed to using Facebook as a supplemental means of service, a substantial question would arise whether that service comports with due process. As one court in this district has observed, ‘anyone can make a Facebook profile using real, fake, or incomplete information, and thus, there is no way for the Court to confirm’ whether the Facebook page belongs to the defendant to be served.”  Ms. McManus would probably agree!  I’ll take it one step further and posit that service via email can be just as perilous.  To tweak the court’s language just a bit:  Anyone can set up an email account using real, fake or incomplete information, and thus, there is no way confirm it belongs to the party or that the party opened the email or viewed the document or documents.

I realize I’m taking some liberties.  The point I am trying to make, though, is that while technology may provide some options that did not exist just 10 years ago, that doesn’t mean it’s the best option for effecting service.  It’s also important to note that the services I discussed in this post were allowed by court order, not by statute.

I do expect that to change, and frankly I’m an advocate of such change, as long as the service is effected by a disinterested third party, e.g. a process server.  Technology is forcing many of us to adapt, and the legal field is certainly not immune.  As I’ve heard many times in my 35-plus years in the legal industry, judges want to hear the case on its merits.  They generally don’t like it when people evade service.  So, if a court can get the party under its jurisdiction in a more creative manner, it should.  Seems logical, doesn’t it?  Perhaps as a first step here in the Golden State, we tackle our antiquated service via publication statute and allow for publication via social media?  In any case, before we all start touting the benefits of service via social media I believe we need to better understand the pitfalls that lie therein and realize that service via Facebook is the exception, not the rule.

I’d love to know your thoughts.  Please email me or comment on this post.

Tuesday, June 17, 2014

Bill Pending in the Kansas Legislature that Related to Electronic Service Died


Kansas  House Bill 2116, introduced in 2013, died in committee on May 30, 2014.  The Bill mentioned in this blog post in February last year read in part:

     When a case is electronically filed and process is to be served
     under this subsection, the chief judge of each judicial district shall
     determine the procedure for service of process through an agreement with      a local enforcement agency.

Honestly I am not 100% sure what this section of the bill was meant to enable except that it appears that it would have given local law enforcement agencies the more authority to serve garnishments and levies by electronic means. 
 
It is worth noting that service by first class mail, facsimile and electronic mail of garnishments is already on the books in Kansas. 

Other service methods for garnishments.
In addition to other methods listed in this section, a person serving a garnishment process may serve the process by any of the following methods:
 
First-class mail.
Process may be sent to a person by first-class mail by placing a copy of the process and petition or other document to be served in an envelope addressed to the person to be served in accordance with K.S.A. 60-304, and amendments thereto, at the person's last known address. The envelope used for service must be addressed to the person in accordance with K.S.A. 60-304, and amendments thereto, and must contain adequate postage. The envelope must be sealed and placed in the United States mail. Service by first-class mail is complete when the
envelope is placed in the mail unless it is returned undelivered.
 
Telefacsimile communication.
Process may be sent to a garnishee by telefacsimile communication at a telefacsimile number designated by the garnishee. Service is complete upon receipt of a confirmation generated by the transmitting machine.
 
Internet electronic mail.
Process may be sent to a garnishee by internet electronic mail at an internet electronic mail address designated by the garnishee and as provided by supreme court rules. Service is complete upon receipt of an electronic confirmation of delivery

Perhaps a process server in Kansas that is familiar with the existing laws and statutes can shed some light on what the current practice is for this document type and exactly what this Bill would have done.
 
by jeff karotkin

Monday, May 12, 2014

Is it time to challenge yourself? I would argue it is past time!





Is the following true for you?  It is for me!

Process Serving is business.  Like all businesses we have to think outside the box if we are going to prosper let alone survive.

I am not saying process serving is not important, it is.  Call yourself a professional if you actually are, but what we do is a business at its essence. Process Servers must realize change =  opportunity and is not a threat. The profession could become even more profitable if advances in technology were incorporated into how we perform rather than ignored. Being profitable and remaining relevant are critical to our survival.

Far too many of us have been programed to believe how we perform the task of giving notice is sacred.... that changing how we perform the task of giving notice is not acceptable.   It is time, perhaps past time to reinvent our industry.

I would argue that whether we like it or not our clients/customers are demanding that we evolve.   And unless we do, we will be left behind on the trash heap that is those that refused to recognize the real opportunity is adding value even if it means we have to shift, evolve or change in order to remain relevant. 

What say you?

By Jeff Karotkin

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