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Thursday, November 12, 2009

Electronic Service of Process at Home and Abroad

Recently I happened upon a Draft of a Federal Court Law Review Article, written by Ronald J. Hedges, Kenneth N. Rashbaum and Adam C. Losey.  The final version as far as I know has not yet been published.

The article is about Electronic Service of Process at Home and Abroad - Allowing Domestic Electronic Service of Process in the Federal Courts.

The article covers the history of Electronic Service of Process in the Federal Courts going back to the earliest instances where electronic service was allowed by facsimile, as well as, the current rule Federal Rule of Civil Procedure 4(f)(3) that allows in certain circumstance for a foreign defendant to be served electronically.

The article goes on to make reasoned case for why the Federal Rules of Civil Procedures should be amended to keep pace with modern methods of both business and personal communication.

The draft Law Review Article is 22 pages of must read material if you want to gain a better sense of how our constituents, federal practitioners and federal judiciary view the issue of electronic service of process.

The following are just a few of the key points the authors offered in support of amending Federal Rule 4 to allow domestic electronic service of process:


“When the Federal Rules were first drafted, the typewriter and telephone were on the cutting edge of communications technology.”



“While the law hardly advances at the speed of technology, federal courts have adapted to new technology. There is a bevy of precedent for amending the Federal Rules to keep up with technology.”



Another example of federal courts adapting to communications technology is the nationwide use of electronic filing. “[Electronic filing systems] are now in use in 99% of the federal courts.” The use of this electronic filing system “not only replaces the courts’ old electronic docketing and case management systems, but also provides courts the option to have case file documents in electronic format, and to accept filings over the Internet.”



“In a service of process context, there is a strong efficiency argument for the use of email. An email can be sent for little or no cost and can reach the recipient’s inbox literally moments after it is sent.”



“ It is likely that history will repeat itself in the international adoption of domestic and international electronic service of process via email and social networking communications, only this time around the United States will follow the lead of Australia and New Zealand.”



“Even if all the arguments against electronic service of process hold true, when electronic service of process is used as a secondary or tertiary channel of service it is more secure and more reliable than the channels currently used. Federal courts already allow service via means that are less reliable than normal channels, provided that more reliable channels are first exhausted.”



“Technology has evolved to the point that electronic service is superior to many forms of traditional service. Electronic service should now be treated as an equal to paper media by the Federal Rules.”

The entire draft article can be found at the following link:
http://www.fclr.org/fclr/articles/html/2009/hedges.pdf

I suspect a few of us could poke a few holes in the logic supporting their premise.  But just a few...  The bottom-line in my humble opinion is that the private process serving profession is in big trouble if it does not confront this challenge in a way that forges a path forward that we can live with.

Let us hope it is not too late.