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