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Thursday, October 15, 2015

Is Electronic Service of Process Upon Us? Are you Ready?

Two weeks ago, the OASIS LegalXML Electronic Filing Technical Committee published a proposal that if adopted and implemented, could impact how service of process of case initiating documents are routed to process servers, sheriffs and registered agents.  The proposal entitled Limited Electronic Service of Process would become part of a national electronic court filing standard (ECF 4.0 or its possible successor ECF 5.0) that many of the largest electronic courts in the country have already implemented.  

The proposal could also be the first step in enabling among other things, electronic service of process of case initiation documents directly from the court to registered agents and other entities that opt to waive the physical service requirements.

Is Electronic Service of Process Upon Us?  Are you Ready? What do the Courts and Private Process Servers have in common?

The Courts - How things have changed. It is estimated that more than 30% of the U.S. population is now served by courts that either already have or in the final stages of transitioning to an electronic courthouse.  This digital revolution have been a long time coming.   I will suggest that 30% is just the beginning, the pace at which courts are moving in this directions is quickening.  This change has required courts, their constituents and justice partners to rethink how they interact with the courts and to do business more efficiently. The court constituents now enjoy electronic filing, electronic service between represented parties, electronic alerts/case events, electronic docket sheets and case management tools, all of which have arguably forever changed the way one interacts with a digital court. 

The Process Server - The type of change I described above can't be said for the process serving industry.  It has been slow and even reluctant to adapt let alone embrace the digital revolution.  Electronic service of case initiating documents is currently the exception.  I am not saying that is a bad thing, it isn't.  That said, I submit that it is foolish to think that the service of process as we know it is immune from the same forces that have shaped the digital courts.

I have been advocating for process servers to embrace change for the better part of the last decade.  I have suggested that if the industry does not take an active role in shaping the future, someone or some thing else will do it for them.

Electronic Service of Process - As mentioned above the service of process by electronic means is the exception.  That exception being instances where a party is able to demonstrate to the court that they have exhausted all efforts to affect service by traditional means and a judge prescribes a manner of service that is otherwise reasonably calculated to provide actual notice.    This blog has cited numerous instances where this has happened, not just in the U.S., but globally. 

One aspect of the Limited Electronic Service of Process proposal is the idea that courts would enable attorneys, who are either registered agents for an entity or attorneys of record representing parties on existing cases, to opt-in and accept primary service of documents electronically on a case-by-case basis.  From my point of view this type of arrangement appears to make the court the equivalent of physical process server.

Frankly the idea that a court would act as a process server represents a challenge to the role of traditional process servers that should be avoided regardless of whether the service event is physical or electronic.  If electronic service of process is going to be implemented then it should embrace practices that mirror the concepts embraced by the physical requirements, laws and statutes.

The following diagram is a quick representation of an electronic service event that recognizes the role and importance of a disinterested third party (process server) that provides a reliable, secure and trusted transaction. The eProcess Server would be responsible service event and would attest to the facts of the transaction, as well as provide a return or proof of service just like a process server does for a physical service event. 

It is past time the leadership of the industry recognize that massive digital change is disrupting everything we do and our industry is not immune.  For more on my thoughts and a suggested path forward, please click here.

by jeff karotkin