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

Expansion of Electronic Service of Process Proposed

Public Comments Sought.  This is your opportunity to help shape the future of Service of Process.  As a participant of the ECF Technical Committee, NALSPro and others worked to draft this proposal in a way that would help ensure that private process servers retain their role in the legal ecosystem that is increasingly digital. 

Building upon the success of secondary electronic service, the ECF Technical Committee (TC) proposes to enhance the Legal Service Major Design Element (MDE) for OASIS LegalXML ECF version 5.0 consideration.  The proposed enhancements are herein dubbed Limited Electronic Service of Process or Limited eSOP.  The Limited eSOP concept aims to fulfill the following objectives:

1. Enable authorized third-party organizations (e.g., process server, sheriff, constable) to receive service of process documents and document metadata through a Filing Assembly Major Design Element (FAMDE) or Filing Review MDE Electronic Filing Manager (EFM) for the purpose of completing service of process on behalf of a requesting individual or organization.

2. Enable authorized third-party organizations (e.g., process server company, sheriff, or constable) to submit proof-of-service documents and document metadata to a court through a system-to-system interface between the authorized third-party’s records management system and an FAMDE or EFM.

3. 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. (Implementation is subject to governing state statutes and applicable court rules).

Post Service Documents to a Secure/Trusted Third-Party File HostingService

http://docs.oasis-open.org/legalxml-courtfiling/ecf-esop/v1.0/cnprd01/ecf-esop-v1.0-cnprd01-COMMENT-TAGS.html

Electronic Service of Process in Washington State

Electronic Service of Process in Washington State

Electronic Service of Process (ESOP) of case initiating and other documents going to commercial registered agents in the state of Washington has taken a giant step forward. Yes that is right, if you are process server in the state of Washington and part of your business has been serving process of registered agents like CT, CSC and others, your services may no longer be required.

Senate Bill 5387 was enrolled early last month, meaning it has been signed by the states Governor.  The Bill is entitled UNIFORM BUSINESS ORGANIZATIONS PROVISIONS, essentially it seeks to create uniformity in common provisions governing business organizations and other entities. 

The entire bill is 245 pages long and buried within on pages 22-16 are new provisions, Sec. 1405 and Sec 1411 that define what a commercial registered agent is and how they may be served with Service of Process, Notice, or a Demand on an Entity.  

Sec 1405 (2) A commercial-registered-agent listing statement may include the information regarding acceptance by the agent of service of process, notices, and demands in a form other than a written record as provided in section 1411(5) of this act.

Sec 1411(5) Service of process, notice, or demand on a registered agent must be in a written record, but service may be made on a commercial registered agent in other forms, and subject to such requirements, as the agent has stated in its listing under section 1405 of this act that it will accept.

So what does this mean?  Well it could  mean that service of process could be affected upon a registered agent by electronic means.  Does that mean that the registered agent will publish an email address that you can send process to or does it mean that they will build an online portal for the electronic submission of process or  they may enable some other electronic method for service of process?  Does it mean that all process to Registered Agents will eventually go electronic?

I guess time will tell.   Some might say that the Washington State Process Servers Association or NAPPS should have done something before this bill passed.  I suppose that is a fair statement.  Others in the process serving community might say I don't serve registered agents all that often so this development is not big deal to me. Perhaps that too is fair. 

But my question is what is the process serving community going to do?  Frankly, I don't know and I don't know who does.  But I do know, that this change is a big deal if you are a process server what makes his or her living by hand delivering process.

Those that have been following this blog for the last 5+ years know that I have been advocating for process servers to embrace change and make it work for them.  These changes to the Washington Uniform Business Provisions represent both a threat and an opportunity. A threat if you do nothing about it and an opportunity for those that seek to capitalize on making sure they retain a role in the increasingly digital world.

What do you think?

By Jeff H. Karotkin

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 18^th, 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

Michigan Landlords May Soon Serve Eviction Notices via Email

A Bill in the Michigan Legislature introduced earlier this year, if passed would allow landlords to give notice of an eviction via email if authorized by a written agreement.  

House Bill 4038 amends 1961 PA 236, entitled "Revised judicature act of 1961," by amending section 5718 (MCL 600.5718).  Specifically by adding section D that would provide email as a manner of notice to the other manners of notice already available. 

If you are a Process Server in Michigan that serves these types of notices this is a development that should catch your attention.  One has to wonder if  this possible development represents the new normal for the service of process business.

It would appear this Bill would get support from the landlord community... If this Bill represents what the landlords want and what the tenants want, what argument can the Process Serving industry make that would be effective in stopping or amending this Bill?

Those that follow this blog now that this is not the first time commented service of an eviction notice via email.  See this blog post from 2010 that explored this issue in a little more detail. 

by Jeff Karotkin

Is Service of Process in Texas a Shrinking Business?

Texas Process Servers - Mostly Bad News

If you are a process server in Texas that relies on new civil and family law cases to be filed so you can serve them, this report confirms what you probably already know.  The number of civil Debt and Motor Vehicle cases  filed statewide are now below 1985 levels. Most other case types including new Family Law cases have declined as well.  If you are serving Child Support cases, great news... those are up sharply.  



http://www.txcourts.gov/media/883372/Annual-Statistical-Report-FY-2014.pdf

Dude Where Did My Service of Process Business Go?

For those following this blog for the last 5+ years know that I have focused it on how the Process Serving and Litigation Support industry has been or may be impacted by the digital revolution underway. 

This short post is no different.  It focuses on a troubling trend, the manner in which civil Subpoena's can be served (actually delivered) upon some of the largest companies in the world. 

After doing a little research for I found the 2015 Subpoena Guide produced by the Associate'sMind Blog to be a very informative and useful resource.  It provides links to detailed information about the polices and procedures of some of these entities in order to properly serve a Subpoena. 


After digging into the policies and procedures of these companies I found that many of them including Twitter, Facebook, Amazon, LinkedIn,  Snapchat, Pinterest and Craigslist all prefer Service of Process be delivered by other that traditional means.  Amazon's information goes into great detail about how to issue a subpoena with a court local to them as well as providing directions that suggests the only way to serve them is via Certified Mail.

As a matter of fact based upon the information they make available the preferred/requested methods of delivery for a Subpoena for civil records are Email, Fax and Certified Mail. I guess this is not at all surprising to many of my readers I have been documenting instances of electronic service and communication for some time now.  

So if you are wondering where your Subpoena business went this may have something to do with it. 

Below is a screenshot of a web-page that AT&T makes available that directs you how to provide them with the information about your Subpoena and what number to fax it to...

 

by Jeff Karotkin

Electronic document delivery drags Ontario lawyers kicking and screaming into the 21st Century

As of Jan. 1, Ontario’s Canada's Rules of Civil Procedure permit the use of “electronic document exchange” or EDX services. The idea is quite simple. Law firms join a cloud-based service that acts as a conduit. A lawyer uploads a document to the service and directs it to the intended recipient. The document is then electronically served with the click of a mouse.

http://business.financialpost.com/2015/01/21/arrival-of-electronic-document-delivery-drags-ontario-lawyers-kicking-and-screaming-into-the-21st-century/

New York Announces Sweeping New Regulation of the Debt Collection Industry

Did Electronic Service of Process in NY just get one step closer to becoming a reality?

One of the changes that are being imposed in the state of New York has to do with how creditors and debtors communicate.  The new regulation allows for communication via Email and it is apparently meant to reduce harassing phone calls.

As I think about what else it could mean or lead to I can't help but wonder if it could bring electronic service of process one step closer to becoming a reality for these types of cases.  What is to stop a creditor from sending demand letters and even the lawsuit via Email? 

Think about  it for a minute… If a creditor knows your email address is valid and the email address follows you regardless of where you work or reside, it just got a whole lot easier to provide actual notice.  Certainly that is better than posting a lawsuit on the door of the last known address.  Why couldn’t a creditor say to the debtor; you don't really want us to send a Process Server or Sheriff to your home or place of work do you? You don't want the cost of the service of process to be added to the debt do you?  Just waive the service requirements and you can avoid the unnecessary cost and embarrassment associated with the service of process... 

Just Sayin... Is this far-fetched?

http://www.troutmansanders.com/new-york-announces-sweeping-new-regulation-of-the-debt-collection-industry-12-05-2015/

by Jeff Karotkin

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 18^th, 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.