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Sunday, March 21, 2010

Substituted Service of Process by E-Mail

The Whois Subcommittee of the Internet Committee of the International Trademark Association recently published a report that discusses the problem of Service of Process in cases of fictitiously owned commercial websites.


The report steps through the committees premise that service of process by electronic mail on the e-mail address should be allowed. The committee specifically recommends that Service of Process by electronic mail to the email address provided in the Whois record associated with the domain name for that website shall be effective against the named registrant of a domain if sent to their email address. The committee is recommending that this change in the laws or treaties be enabled without the need for a court order allowing for an alternative manner of service.


In the report the committee cites fifty-six (56) cases of relevance in the analysis of the challenges associated with giving actual notice of an action to a foreign or fictitious defendant who has infringed on another’s trademark.


They go on to cite several Law Review articles and other secondary sources that support their proposal that in certain circumstances Service of Process by email should be allowed. The report is available at the following link: http://bit.ly/963Cwr. The Committee is welcoming comments on the Report at any time, comments should be sent to eservicereport@inta.org.

This committee’s work is yet another example of the ongoing erosion of traditional Service of Process. In my opinion this report accurately and thoroughly points out that traditional means for service of process can be insufficient in circumstances where a defendant is able to hide behind a fictitiously owned website, especially if you take into consideration the modern communication tools available today. There are those within the profession that continue to believe that examples like the one cited above are not a real threat.

If you believe that changes like the one proposed above will stop and do not have the potential to lead to other shifts in the laws and the behaviors of the legal profession you are fooling yourself. Those that argue that electronic service is only allowed after all other methods of service have been exhausted fail to realize that what the rules governing Service of Process allow and what the practices the legal profession employ, sometimes are two totally different things.

If you think the absence of rules formally allowing eService will stop it from happening you are mistaken. I know for a fact that not a day goes by when more and more process is served by means not authorized by codes or statutes including email and other electronic means. That includes Summons, Citations, Subpoenas and other documents that are required to be served personally.

I have come to believe that if the professional process serving profession seeks to maintain a role long-term, it needs to first acknowledge that CHANGE is happening that challenges the professions very existence. The profession also needs to stop being so change-adverse. If the profession comes to the conclusion that it needs to adapt then and only then will it be able to formulate a strategy that enables process servers to retain over the long term the vital role they perform today. That strategy should take into account the cold hard fact that the profession will not stop the march of technological advances that are likely to continue to threaten traditional Service of Process. The strategy should understand and account for the arguments for the change that threatens the profession and in doing so should offer an alternative solution that insures a role for process servers in the increasingly electronic world. And finally, the strategy should look at the big picture and provide for both long and short term goals that seek to insure the profession remains relevant.

The following is an example of what the Notary profession did when it was similarly threatened. Several years ago the National Notary Association (NNA) recognized the threat of eNotarization in their industry. They realized that they needed to be a part of the solution if they if their members were going to retain a role. Approximately four years ago they gathered various notary groups and other interested parties to start a discussion about eNotarization. Today, thanks largely to vision, determination and focus they lead the way forward in eNotarization, keeping their interested parties in business.

The private process serving profession faces similar challenges today. Individual process servers without a strategy for personal and industry development will have a hard time ensuring their long term success.


This challenge is bigger than one association. It requires that all interested parties partner in an effort to create the foundation for a strategy moving forward. Once the foundation is in place, the profession can continue to build and transform the industry to not only keep pace with the legal industry, but also ensure that process servers’ businesses will continue to thrive.
 
If we do not find a way to clarify and define our role in an electronic world, we risk becoming obsolete. We will not become obsolete if we take charge and become the Masters of Our Own Domain. In order for that to happen we need leadership at a state and national level that understands the challenges we face and more importantly is willing do the hard work necessary to protect, promote and preserve the private process serving profession. The status quo is unacceptable.
 
This challenge is not much-a-do about nothing. It is about the future of the profession. As always, I welcome your comments.