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

Service of Process in the 21st Century

Focusing on the Future

What does the future hold for the process serving industry?  Before attempting to answer that question let’s first acknowledge that the process serving industry has remained largely unchanged for many decades, if not longer.  The advance of technology has had some impact on the industry and the changes that have impacted the industry have largely been forced upon process servers.  It is not like they are looking for opportunities to embrace change and make it work for their benefit. 

As part of this article I will explore the role of Registered Agents as well as Process Servers and the relationship that exists between the two.   Registered Agents rely upon the delivery of physical documents to a physical location in order to fulfill their role of accepting the Service of Process.   Once they receive the document they typically perform a series of steps that are part of the actual intake of the documents.  First they perform a check to see if they actually represent the entity on whose behalf they were served.  Then, they will do a data entry function to log and document all the identifying details of the documents (plaintiff, defendant, court, case number, initiating law firm name, date of service etc…).  Depending upon the arrangement with their customer, they scan and email the documents and/or over-night the documents to the appropriate legal department of the intended recipient.  Some Registered Agents have sophisticated software that connects to the intended recipients matter/case management system.

If you stop and think about the role of Registered Agents and Process Servers you will see that they have a lot in common.   They both fulfill a specific role in the act of providing notice which is part of the due process rights of the parties to the legal action.  The Process Server’s role is to provide the initiating and receiving parties with a sort of peace of mind or proof that they performed the service lawfully.  Process Servers act as a disinterested third party that attests to the facts surrounding the service of documents to the intended recipient in a trusted manner.  In most cases they also provide the courts and the parties with a Proof of Service or Affidavit that the service was made in accordance with the governing laws.  Registered Agents also attest to service events details for their customers.  

I think that most inside this Eco-system and even some outside will  acknowledge that the manner or methods by which process is served and then forwarded to the intended recipient is not an efficient or practical way for the service event to take place.  The manners in which the Process Server and the Registered Agents fulfill their respective roles are lawful but they are not being performed, in my opinion, in a manner that common sense would dictate if you were trying to add value and create efficiencies.  I contend that these acts can and should be performed in a manner that actually adds more value and creates more efficiencies than those currently available.  The challenge of creating efficiencies and adding value for all involved presents an opportunity that shouldn’t be too hard to understand.

Let’s face it, what is going on here from a practical standpoint is nothing more than getting documents and data from the initiating party to the intended recipient party in a manner that can be trusted.    And if you look even harder you will see that the documents and data that the Process Server and the Registered Agent are managing originally existed in an electronic format at the law firm before the process server and registered agent even get involved.  I contend this is at least in part where the opportunities to add value and create efficiencies should originate.   If you were to enable an electronic platform to fulfill the service event, I think you could still preserve the roles and responsibilities of both the Process Server and the Registered Agent.  

Getting back to the original question; what does the future hold for the process serving industry?  I submit that future is bleak for both the Process Server and perhaps even the Registered Agent if they continue to ignore that they should be part of a solution that allows them to remain relevant.  I submit that this evolution will happen with or without the process server or registered agent.   If they embrace this opportunity they will be part of the solution and as a result their future could be bright. 

The funny (and sad) thing is that Process Servers,  Registered Agents and other interested parties did come together about nine (9) years ago to try to address this very challenge.  I know because I was there. I participated in those meetings and came away with the feeling that neither the Process Servers nor the Registered Agents were genuinely interested or committed to making it happen.  Ultimately the effort failed.  It was no one’s fault exactly, the parties weren’t ready, and perhaps it just wasn’t time.  That said the ABA committee that tried to address this challenge did leave an artifact that could be dusted off and reused.

I would argue that it is time now.  Actually it is past time that Process Servers transform their role at least as it relates to the service of process to corporate entities and Registered Agents.  I believe that if Process Servers want to stop the erosion of their service of process business model they need to become the electronic equivalent of a physical process server.   I understand that the notion of electronic process serving is scary and foreign to many in the process serving industry today.  Just because it is scary or foreign does not mean that it shouldn’t be discussed or embraced.  I believe that electronic service of process should be part of the technological revolution that has resulted in more and more people (even lawyers) becoming comfortable with performing essential and important tasks online/via the Internet. 

Did you know that our counterparts in Quebec and France have already started to embrace the kind of change that is necessary to make the transition to digital process serving?   The Quebec Huissiers are building and will soon be rolling out their solution to start that process.   I had the honor of speaking to Quebec Huissiers earlier this year about the importance of making the transformation from a physical fulfillment organization to an electronic fulfillment organization. I will be a guest speaker again this October in Quebec and will address the Rules of Civil Procedure in CA that enable private entities to be Electronic Filing and Electronic Service Providers.  

Technology waits for no man or industry; it just keeps getting better and more efficient.  History has shown us that those companies and industries that were slow to react or that were otherwise in denial were left behind never to catch up.  I will bet that you did not know that Kodak invented the first digital camera.  They did, and they chose not to evolve (perhaps to preserve their film business) and look at them now… they are bankrupt and may not survive.   Those in the process serving business that let fear paralyze them or otherwise fail to embrace this change will see their business leave them for good.  

If you are a process server in the United States and you are waiting for someone else or some process server association to address this challenge you are likely going to be disappointed.  If the process serving industry insists upon a fight that seeks to preserve the status-quo they will in my opinion have picked the wrong battle to fight.  If on the other hand you are interested in becoming part of the solution and ensuring your company remains relevant then it is time to lead by example and re-invent the Service of Process.  Rest assured if you don’t someone else will eat your market share for lunch.

I plan to be part of the solution.  How about you?

Jeff H. Karotkin

Vice President of Strategic Development

One Legal LLC

United States Senate Bill 1606. Good for Process Servers?

U.S. Senate Bill 1606 was introduced in the current session of congress. It would require foreign manufacturers of products imported into the United States to establish registered agents in the United States who are authorized to accept service of process against such manufacturers, and for other purposes.


http://www.govtrack.us/congress/bill.xpd?bill=s111-1606%20

Is this a good thing for private process servers? It appears to me that this bill in its current form would take a step toward leveling the playing field for domestic and foreign manufacturers that produce products that harm U.S. consumers.

I fail to see how that is a bad thing. I am sure it could be argued than it might drive some prices of products up that are imported into the U.S. because foreign manufacturers would be more likely to be held accountable for faulty products.

One reason they are not currently held accountable is because it is very expensive and time consuming to go after foreign manufacturers. One of the expensive and time consuming hurdles is the act of serving process internationally. It appears this bill removes that hurdle. Because the service of process on foreign entities is time consuming and expensive and requires a professional that specializes in providing these services. For a select few process serving agencies this bill could adversely impact their business.

For the vast majority of process servers this bill could result in more cases being filed against foreign manufactures and in turn mean more primary service of process, more discovery as well as more secondary service of process to be served domestically.

I have had a few discussions with fellow process servers and most feel this bill is a positive step forward for the private process server in the United States. A few other process servers are not so sure. Personally, I fall into the camp that would support the bill in its current form.

What do you think? I raise the question because nobody else is. I raise the question to create awareness about this bill. A few in the NAPPS leadership are aware of the bill. Thus far it has not been assigned to the legislative committee but is however being monitored by the International Committee. I do not know about you but I do not know what that means.

I believe the NAPPS leadership needs to hear form you on this topic; otherwise they will operate in a vacuum believing that they know what is in your best interest. Maybe they do, that is why they were elected right?

I believe what you think is more important than letting this issue remain quite.

This post represents my personal observations and should not be construed to be the opinion or position of anyone else or any organization.