Facebook Service of Process Approved in S. Africa

SOUTH AFRICAN JUDGE ORDERS SERVICE OF PROCESS

VIA FACEBOOK

 

As if the Newspaper publishers did not already have enough challenges to their business model, Service via Publication in the back of a newspaper is loosing its appeal.  It would seem that it is being replaced by Service via Facebook, email and other electronic methods.   Those that follow the Process Serving industry know that service via publication in a newspaper is typically ordered by a court when all other methods of service have failed or have otherwise been exhausted.  Facebook seems to be the new preferred method of service when all other forms of service have failed. 

This from the Independent Online News in South Africa (IOLnews)

Judge explains Facebook summons

August 7 2012 at 09:51am
By Mervyn Naidoo

“Changes in communication technology have increased exponentially; therefore it is not unreasonable to expect the law to recognise such changes and accommodate it,” said Steyn in a written explanation.

“The present application, in my view, would not have been possible had it not been for a recent amendment to the uniform rules of a court which provides for service by way of electronic mail, registered post and fax,” said the judge...

link to story

This story is one of many similar stories I have addressed in recent years on this blog.  Do cases like this one and the others suggest that traditional process servers are going to cease to exist?  Personally I do not think so, but I do think it is important that process servers the world over acknowledge that times are changing and that we need to change with them and hopefully evolve so that we can become the electronic equivalent of a physical process server if that means that is the only way we will remain relevant and the due process rights of the practice are protected.

Jeff H. Karotkin



Service of Process via Text Messaging... Constitutional?

Text Message Service of Process - No Lol Matter: Whether Text Message Service of Process Comports with Due Process

by

Claire M Specht

Boston College Law Review

August 2, 2012

Boston College Law Review, Forthcoming

This Law Review Article like several others I have posted to this blog over the years explores the history and legal precedents of lawful Service of Process, as well as exploring whether or not the courts and other rule making bodies should consider alternative forms of service that conform with modern technologies. This Law Review Article focuses onText Messaging as a manner of service and whether it could be reasonably be calulated to provide actaul notice. 

"Advantages and Limitations of E-mail Service of Process

Despite the significant push for allowing e-mail service of process amongst scholars and practitioners, scholars have extensively dis-cussed the advantages and disadvantages arising from e-mail service of process. Some scholars argue that the advantages of e-mail service of process outweigh the disadvantages. These scholars appeal to the extensive use of e-mail by individuals both domestically and abroad. Moreover, serving process via e-mail is efficient as it costs little, if any-thing, to send and results in almost instantaneous receipt. Further, at least one commentator has argued that service of process through e-mail is more likely to apprise the defendant of the proceedings be-cause it is not subject to movement but rather remains in the defen-dant’s inbox until it is opened."

In my opinion this article is a must read if you want to better understand the challenges and opportunities facing the private process serving industry in the United States and globally.

The full content can be found here.

Jeff H. Karotkin

Has the Internet Changed the Service of Process

Has the Internet changed the way Process Servers perform their jobs? Will traditional process servers become a thing of the past?  

 

The answer is clear to the first question, how process servers perform their duties has changed in so many ways.  And electronic service of process may be one of the biggest changes on the horizon.

 

Tabitha Messick of Citizen Media Law Project, published a blog post earlier today (July 26, 2012) entitled Service of Process, 2.0.  Her post explores the role of Service of Process historically and chronicles its slow evolution up to a case in New York that I wrote about a few weeks ago involving a judge’s refusal to allow service of a defendant via social media.  Her blog post can be found here. 

 

She makes many of the same observations I have made in prior blog posts.  If I did not know better I would think that much of the information she has written about was gleaned from this blog.  If so, I am flattered.   The following is one of her observations:

 

"The ABA's Science and Technology Committee took a stab at addressing legal and technical issues with electronic service in 2006 with its Best Practices for Electronic Service of Process (eSOP). Though dated now, it was an important starting point in the discussion. The document proposed requiring knowing and voluntary waivers of service (e.g., via website terms of use), document encryption for privacy and confidentiality, and maintaining principles and protections consistent with due process. The draft rules also reiterated the importance of receipted transactions as reliable proof for electronic service of process."

As one of the few folks that was fortunate enough to have participated on the ABA committee that crafted the Best Practices, I have to agree that it is time to dust them off and use them as a new starting point to help ensure that simple email of social media platforms do not become the standard for reliable electronic service of process.  

It is crystal clear to me that the legal community is embracing change and primed to accept the notion that eService could be as reliable and trustworthy as traditional service of process. The question remains will traditional process servers be in a position to recognize that even though the shifting marketplace is scary and sometimes threatening it may present an opportunity?    Time will tell.

Jeff Karotkin

Service via Facebook - You Have a New Lawsuit

A very comprehensive look at the issues surrounding service of process via social media; written by two lawyers at Morrison & Foerster.


They cite references to most of the major instances of service of process via social media globally over the last few years. I even get a nod with a link to an article I wrote last year about the trend.

http://www.sociallyawareblog.com/2012/06/25/you-have-one-new-lawsuit-can-you-serve-legal-notice-through-social-media/

"In the long run, service through social media and other Internet-based means of communication could become a viable alternative to personal service, given that electronic service may have certain distinct advantages over the traditional means of alternative service used where no physical address is available (i.e., publication in local newspapers and posting of public notices). "

by Jeff Karotkin

Service of Process via eMail and ePublication

Last month in a Federal Court case pending in the UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION, Judge Robert M. Dow granted a Motion for the Service of Process via email and electronic publication. 

Those following this Blog know that this is hardly the first time that a similar Motion and Order has been granted in Unites States courts.  As a matter of Federal Rule of Civil Procedure 4(f)(3), specifically allows courts to grant alternative manners of service on foreign defendants when all other manners of service have been exhausted or have be unsuccessful.

The following is actual language from the Motion arguing for these alternative manners of service.   

Service of Process by E-mail and Electronic Publication is Warranted in this Case Pursuant to Federal Rule of Civil Procedure 4(f)(3), Coach requests an order allowing service of process on Defendants via electronic mail (“e-mail”) to the registrant of each of the Defendant Domain Names at the e-mail address provided by the registrant to the registrar and by electronically publishing notice of this action at the Defendant Domain Names.

Electronic service is appropriate and necessary in this case because the Defendants, on information and belief, (1) have provided false physical address information in their registrations for the Defendant Domain Names in order to conceal their locations and avoid liability for their unlawful conduct, and (2) rely primarily on electronic communications to communicate with their registrars and customers, demonstrating the reliability of this method of communication by which the registrants of the Defendant Domain Names may be apprised on the pendency of this action. Coach respectfully submits that an order allowing service of process solely via email and electronic publication in this case will benefit all parties and the Court by ensuring the registrants of the Defendant Domain Names receive immediate notice of the pendency of this action and allowing this action to move forward expeditiously. Absent the ability to serve the Defendants in this manner, Coach will almost certainly be left without the ability to pursue a remedy.

Click the document to link to the actual Motion filed by the plaintiff law firm representing COACH, INC. and COACH SERVICES, INC.,

By Jeff Karotkin

Service of Process Under the Hague Convention... To Mail or not to Mail?

Courts around the country are split as to whether Article 10(a) permits Service of Process by mail in international civil actions, the New York courts are no exception.

Recently the New York Law Journal produced a white paper that provided expert analysis of the issues surrounding the differing points of view of various courts in New York.  

I am probably over simplifying the issue but it appears to me that part of the conflict  has to do with what is the definition of  "Service of Process" on the Hague Convention.  Is it correspondence and other informational material or is it more formal documents like a summons and complaint?  Some courts have held that it is both while others have not. 

It seems to me that if the initiator of the Service of Process and the recipient of the Service of Process are consenting to service via postal, electronic or other more convenient and cost effective channels then who cares. 

I encourage you to learn more by visiting the article at the link provided above.   

Jeff Karotkin

Electronic Service of Process via RPOST

Three months ago I posted an article on this Blog titled "Can you Serve Summons & Complaint by Email? " in that article I cited another instance where RPOST was ordered by a federal court as alternative means of Service of Process on a foreign defendant.  So this is hardly the first time RPost has been on the Service of Process Looking Forward radar. 

I have been watching RPost for some time for this very reason.  Does their technology pose a threat to traditional  manner of service of process?  I contend that as long as it is being used as method of service of process when all other reasonable methods have been exhausted, then my short answer is no.  It is arguable more reliable than service by publication in a newspaper.  

But RPost is worth watching.  In my prior article I wrote the following:

It is also be worth noting that RPost recently participated in a roundtable discussion hosted by the Federal Trade Commission.  The roundtable explored how changing technologies affects the ways debt collectors communicate with consumers and how emails are being used by collection agencies in the collection process.  

Now imagine if the debt collector is allowed under the FDCPA regulations to communicate with the debtors using regular email or RPost's product.  If that happens why couldn't a debt collector send a Summons to the debtor using a reliable and secure electronic channel?  The collector might say in the email I can send the summons to you by email or I can send a process server or Sheriff to serve you... You pick, but keep in mind if I send a process server I might include the cost of service in the judgment or settlement amount.  Now that might put a dent in the process serving industries pocket.

When is the process serving industry going to acknowledge that service by electronic means is not much ado about nothing?   If you listen to some in the process serving industries leadership it is clear they are either out of touch or naive.  Either way, how you as a process server remain relevant is your responsibility.  If you are waiting for your national association to step up and save the day, I submit it will be too late.

by Jeff H. Karotkin

Technology is Modernizing Process Serving

This from InsideArm, an accounts recieveable managment association that caters to the consumer debt collection indsutry...

The industry’s leading process service companies are now deploying sophisticated technology and mobile devices to add substantive evidence that legal documents are properly served and that collections agencies and attorneys are providing defendants proper notice of legal proceedings. says Steve Carrigan of ABC Legal

http://www.insidearm.com/opinion/technology-is-modernizing-debt-collection-process-serving/ 

What do you think?  Is all this monitoring of process servers a good thing?   Later this month a process serving standards summit will be held in Denver to discuss the possible adoption of minimum industry standards for process servers serving consumer debt collection matters.   View the proposed standards here. http://www.processservingstandards.com/ 

by Jeff Karotkin

Quebec Bailiffs are Becoming Digital Process Servers

I had the pleasure of being a guest of the Chambres de Huissiers du Justice (Quebec Bailiffs Association) in Montreal a few weeks ago.  The annual "congress" was focused on technology and how the Quebec Association of Bailiffs have developed a product called "Notabene".  Notabene is a platform that acts as a disinterested third party that performs many of the same functions as a physical process server only electronically.  Clearly the Bailiffs in Quebec recognized that fax and email was eroding their business so they sought to create a platform that enabled them to become the equivalent of an electronic process server.  

“There has been a lot of talk in the legal community about electronic notice and, to help make that happen, we are offering a vehicle that is secure and operated by a trusted third party,” says Louis-Raymond Maranda, president of the Chambre des huissiers de justice du Québec. 

Read more: http://www.montrealgazette.com/Strictly+Legal+Quebec+bailiffs+become+digital+process+servers/6821874/story.html#ixzz1yZjLBDmn

As the article indicates the product is owned by the association and the actual members of the association.  It is a very interesting product that currently allows lawyers to serve each other (notice to opposing counsel) in an inexpressive, secure and trusted manner.  

The important point (at least to me) is that this effort in Quebec is a great example of folks with a common interest (survival and prosperity) coming together to create something that allows them to remain relevant in an increasingly digital world that threatens their very existence. 

Thank you to Chambre des huissiers de justice du Québec allowing me to address their members as a guest speaker at their conference.  I spoke to them about eFiling, eService, change management.  

Jeff H. Karotkin  

Alernative Service of Process - Service Via Website Posting

Last week a UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Judge Ordered Service by alternative means pursuant to the Federal Rules of Civil Procedure 4(f)(3).  This manner of service is somewhat unique and as far as I know has only been ordered exactly this way in one other case.

The Order reads in part as follows:

1. Plaintiff shall serve each Defendant's Summons, Complaint, and all other current
 and future filings in this matter, upon Defendant 8 - chanelbags-2010.com via desianerbags@live.com; upon Defendant 10 - chanelpricelist.com via TopGiftzolzt@gmail.com; upon Defendant l 5 - designerbagsoutlets.com via designerbagsoutlets@hotmail.com; upon Defendant 28 madeinputian.com via madeinputian@hotmail.com; upon Defendant 39
sobestreplicahandbags.com via goodhandbagsonsaleçzgmail.com; upon Defendant 42
swissetawatches.com via saleslwatchzbuy.com; and upon Defendant 46 - topshoesshop.net via
topshoesshopro@hotmail.com ;

2. Plaintiff shall also serve each Defendant's Summons, a copy of the Complaint,
and all other current and future filings in this matter, upon each Defendant in this action via (A)
the e-mail addresses provided by Defendants (i) as part of the domain registration data for each
of their respective domain names, including service via registrar, or (ii) on their websites,
including by onsite submission form s, and/or

3. Plaintiff may effectuate service of process on Defendants via publication by
posting a copy of the Complaint, and Summonses on the Internet website appearing at the URL www.servingnotice.com/sdm/index.html

If you visit the website provided in the Order ( link above) you will find that it is the equivalent of an electronic publication of all the relevant documents in the case that would provide the defendants with actual notice of the lawsuit.  That is assuming they actually visited the site.  The complete Order in this case case her found here.

The other instance of service via a website that is very similar to this example can be found be visiting: www.serviceofpleadings.com  In this case the judge ordered the copies of the pleading to be posting in both English and Chinese as it was believed that the defendant might be of Chinese decent. 

By Jeff Karotkin