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

Federal Judge Rejects 'Unorthodox' Plea to Permit Service by Facebook

Judge John Keenan of the U.S. District Court for the Southern District of New York decided that Service of Process by Publication was more effective manner of alternative service than posting an update to the Facebook page of the defendant.    

The Plaintiff after being unable to locate and serve the defendant petitioned the court to allow service by electronic mail, publication, Facebook and mail.  The judge determined that service by publication in 5 newspapers was the most likely to provide actual notice.  

The Judge said "Service by Facebook is unorthodox to say the least, and this court is unaware of any other court that has authorized such service," Keenan said. "Furthermore, in those cases where service by email has been judicially approved, the movant supplied the Court with facts indicating that the person to be served would be likely to receive the summons and complaint at the given email address."

The judge went on to say "give the Court a degree of certainty that the Facebook profile its investigator located is in fact maintained by Nicole or that the email address listed on the Facebook profile is operational and accessed by Nicole."  "Indeed, the Court's understanding is that 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 Nicole Fortunato the investigator found is in fact the third-party Defendant to be served."

I for one happen to agree at least in part with the judge in this instance.  Unless the moving parties can establish that the profile did in fact belong to the defendant, that manner of service is not reasonably calculated to provide actual notice.   That said, service by publication is not much better, but it has a long history of being a means of last resort where service by social media does not.  

Service via social media platforms has been picking up momentum in recent years and I believe it would be threat to due process rights of the parties to accept it as a reliable manner of service just because Facebook has established a platform and brand that is used the world over. 

The courts should be looking to craft and adopt Best Practices for Electronic Service of Process for parties that opt-in or for instances where all of manner of service have been exhausted.  Perhaps judge should be more aware of the the American Bar Association adopted a set of best practices way back in 2006.    I would argue that is it time to dust them off and make sure that they are as relevant today as they were meant to be back then.  The bench and bar should be socializing them across the country so that judges have as much information as possible before they rule on motion to allow alternative forms of service of process.