You Have Been Served Without Ever Leaving Your Desk

When you think about the act of giving notice/serving process I bet you did not have in mind being served by a posting to your Facebook wall, twitter account, or to your email inbox. Well it seems as though not a week goes by when there is not another instance of electronic service process in the news or being written about in the legal community.



Increasingly our customers and constituents view the physical act of service of process as being out of touch with the times. We can not afford to stand by and read story after story suggest that service of process through social networks and by email is an acceptable or reliable means for effecting service.


The following is a link to an article that appeared in the legal publication South East Texas Record last month. Please check it out the author mentions several of the instances I have written about on my blog and on this forum.


http://bit.ly/1gOny7


The following is the closing line of the article:


“Professional process servers may no longer have to worry about the cat-and-mouse challenges of physically serving defendants, if an online alternative beckons.”

Electronic Service of Process at Home and Abroad

Recently I happened upon a Draft of a Federal Court Law Review Article, written by Ronald J. Hedges, Kenneth N. Rashbaum and Adam C. Losey.  The final version as far as I know has not yet been published.

The article is about Electronic Service of Process at Home and Abroad - Allowing Domestic Electronic Service of Process in the Federal Courts.

The article covers the history of Electronic Service of Process in the Federal Courts going back to the earliest instances where electronic service was allowed by facsimile, as well as, the current rule Federal Rule of Civil Procedure 4(f)(3) that allows in certain circumstance for a foreign defendant to be served electronically.

The article goes on to make reasoned case for why the Federal Rules of Civil Procedures should be amended to keep pace with modern methods of both business and personal communication.

The draft Law Review Article is 22 pages of must read material if you want to gain a better sense of how our constituents, federal practitioners and federal judiciary view the issue of electronic service of process.

The following are just a few of the key points the authors offered in support of amending Federal Rule 4 to allow domestic electronic service of process:

“When the Federal Rules were first drafted, the typewriter and telephone were on the cutting edge of communications technology.”



“While the law hardly advances at the speed of technology, federal courts have adapted to new technology. There is a bevy of precedent for amending the Federal Rules to keep up with technology.”



Another example of federal courts adapting to communications technology is the nationwide use of electronic filing. “[Electronic filing systems] are now in use in 99% of the federal courts.” The use of this electronic filing system “not only replaces the courts’ old electronic docketing and case management systems, but also provides courts the option to have case file documents in electronic format, and to accept filings over the Internet.”



“In a service of process context, there is a strong efficiency argument for the use of email. An email can be sent for little or no cost and can reach the recipient’s inbox literally moments after it is sent.”



“ It is likely that history will repeat itself in the international adoption of domestic and international electronic service of process via email and social networking communications, only this time around the United States will follow the lead of Australia and New Zealand.”



“Even if all the arguments against electronic service of process hold true, when electronic service of process is used as a secondary or tertiary channel of service it is more secure and more reliable than the channels currently used. Federal courts already allow service via means that are less reliable than normal channels, provided that more reliable channels are first exhausted.”



“Technology has evolved to the point that electronic service is superior to many forms of traditional service. Electronic service should now be treated as an equal to paper media by the Federal Rules.”

The entire draft article can be found at the following link:
http://www.fclr.org/fclr/articles/html/2009/hedges.pdf

I suspect a few of us could poke a few holes in the logic supporting their premise.  But just a few...  The bottom-line in my humble opinion is that the private process serving profession is in big trouble if it does not confront this challenge in a way that forges a path forward that we can live with.

Let us hope it is not too late.

FTC Posts Draft Agenda for the 3rd Roundtable Session

The third session of the Federal Trade Commission's Roundtable discussions on “Protecting Consumers in Debt Collection Litigation” is set for December 4th in Washington D.C.


The following is the Agenda:


9:00 Introductory Remarks


9:15 Initiating Suits: Service of Process and Consumer Participation

•  Why aren’t more consumers defending against collection suits?

•  To what extent are consumers failing to participate in collection suits because they were not served with process? What are the other reasons for failure to participate?

•  What can courts and others do to increase consumer participation in debt collection suits?

•  What actions should lawmakers, the courts, the FTC, the industry, or others take to address service of process and consumer participation issues?
  There are other topics on the agenda but I thought I would highlight the section that specifically relates to the service of process. The full agenda can be found here.
  
   I understand that NAPPS will have a representative on the panel.
  
  
  
  

Electronic Court Filing and Electronic Service Presentation 2004

The following slide show is from a 2004 presentation I gave at a NAPPS Conference. Almost all of it is as relevant today as it was five years ago.  


The diagrams that predicted where things were headed have come to pass and are having a negative impact on court filing and process serving businesses from coast to coast.

eFiling and eService Presentation 2004 -


eFiling and eService Presentation 2004 -

SHERIFF TO ACCEPT SERVICE OF SUBPOENAS ELECTRONICALLY

In Collier County Florida, the public defenders office is slated, by years end, to begin serving subpoenas on law enforcement officials (sheriffs) electronically. This appears to be a collaborate effort and exact details of the system are unknown. While perhaps inevitable, it’s a sad day indeed when you see folks involved in this project saying things like:

“It’s a great thing. It’s a sign of the times…It’s where we’re all headed.” - Charlie Green, Clerk of the Court

“It lets us be sure the people we are serving have actually been served.” - Elizabeth Snow, IT Director, Public Defender

It should be our profession saying these things but it’s not. We should not be surprised if we see more of this given the lack of strategy, leadership and vision in our profession specific to electronic service.

The full story can be found  here.

Fraudulent Service of Process being addressed in New York City

New York City Councilman Garodnick Announces Reform

of Fraudulent Process Service.

Garodnick Announces Reform of Fraudulent Process Service


In the aftermath of Attorney General Andrew Cuomo suing 35 law firms for illegally failing to notify New Yorkers that they were being sued over old debts, Council Member Garodnick announced legislation to protect consumers from fraudulent process service.

Each year, debt collectors suing in New York City Civil Court collect $800 million in judgments. In 80 to 90 percent of those cases, New Yorkers never realize that they have been sued — frequently because the process servers hired by the debt collection law firm never deliver their court papers. The result is a default judgment, which can be used to freeze a bank account and garnish wages, and which ruins a person’s credit.

Council Member Garodnick’s bill would rein in process servers by requiring that they, and the agencies they work for, provide the City a surety bond, or insurance, in order to be licensed to do business in New York City.

“Everyone is responsible for repaying their debts—nothing here changes that,” Council Member Garodnick said. “But our neighbors deserve a chance to defend themselves in court from debt claims, which are often frivolous. It doesn’t help anyone for our neighbors to be put into financial purgatory over debts they never actually incurred.”

Service of Process Via Facebook

Earlier this year a judge in Alberta, Canada signed an order allowing a defendant to be served by posting the Notice of the Action to the defendants Facebook account.

This is the third instance of Facebook being allowed/ordered for the Service of Process that I am aware of. First in Australia and the second in New Zealand, both occurred in the last 12 months.

This post comes on the heals of a posting regarding Service of Process via Twitter earlier this week. Clearly judges around the world see social networks as being at least as reliable a means for giving notice if not more so than publication when all other methods have failed. I have to admit that I would agree that in certain circumstances service of process via social-networks or by other electronic means makes more sense than service by publication.

I would not dismiss these recent developments as being a fad or a trend. They are important and I believe they demonstrate that the courts and our customers are more and more willing to consider alternate manners of service that only a few short years ago where unthinkable.

Just this evening I received an email from a fellow process server in Nevada. He wrote that he has realized that his court filing business is all but gone come February of next year because the courts in the 8th Judicial District of Nevada has mandated electronic filing.

He admits knew this day was coming. He also admits that he was not prepared for the reality of it hitting him so soon and so hard. He now finds himself wondering how to adjust his business model in order to survive the changes that are happening around him. He is not alone; process serving companies from Seattle to Philadelphia in the last year have found themselves facing the same dilemma.

The Service of Process has remained largely unchanged for more than 100 years. I believe we are fooling ourselves if we think the act of serving process will not see a dramatic change in the years to come.

My point is we have been talking about eFiling and eService at a national level for more than 10 years. We need start preparing ourselves and our business for these and other challenges if we hope to remain relevant in the digital age.

Are we on our own as we face these challenges or will the state and/or national process server associations lead the way? Do those associations even have a role in addressing these challenges? If so, do they have the talent and where-with-all to help insure the profession remains viable for many years to come?

What do you think?

FTC Debt Collection Roundtable Video and Transcripts Now Available

he Federal Trade Commission held the second of three roundtable sessions around the country last week in San Francisco. The Service of Process has been a topic of discussion in the first two sessions. As you may know, the profession took a few kicks in the gut during the first roundtable in Chicago.

The San Francisco session also had the Service of Process on the agenda. This time around process servers were given an opportunity to participate as part of the panel of speakers. Paul Tamaroff and Andy Estin were on the panel and represented the interests of the private process serving profession. The San Francisco session was less painful to witness but it was not without its moments where the professionalism of the industry was called into question. Both Andy and Paul offered suggestions on how to address the problems.

If you are interested in viewing the video webcast or reading the transcripts of either the Chicago or San Francisco sessions that were dedicated to the Service of Process and Default Judgments. I have provided the following links:

Chicago Webcast: http://www.mobilevideo.net/ftc/080509_ftc_sess1/softv.index.htm


Chicago Transcripts: http://htc-01.media.globix.net/COMP008760MOD1/ftc_web/transcripts/080509_sess1.pdf


San Francisco Webcast: http://www.mobilevideo.net/ftc/093009_ftc_sess1/softv.index.htm


San Francisco Transcripts: http://htc-01.media.globix.net/COMP008760MOD1/ftc_web/transcripts/093009_sess1.pdf

You might want to take an Advil or two first.

Service of Process Via Twitter

In an ever increasing and troubling trend, yet another court has allowed Service of Process using a social networking site.  

Yesterday an English High Court ruled that a court injunction (order) could be served via Twitter.  The Order approving this service method is being called the Blaney’s Blarney Order after the subject matter of the litigation.    The law firm representing the plaintiff in this case claims this is the first time an order has ever been served via Twitter. 


Not so fast...  It may not be the first time Twitter was used to provide notice to a party to a lawsuit.  Earlier this year a Dutch antipiracy group brought suit against Pirate Bay (a Swedish company accused of hosting illegal downloads) and provided notice via Facebook and a Twitter account claiming they weren't able to locate the company founders.  See tweet below.

It is interesting that many of the same issues process servers deal with in the physical world, exist in the virtual world.

- Can't locate the person to serve

- Get creative in serving the documents

- Claim you weren't served

- Serving the wrong person

In a previous post on this blog dated 9/11/09, I asked the question "Is this the future of Service of Process? If you have not already read that post I encourage you to do so, I cited a few other instances of social networks being used to effect service of process.


What do you think?

Chinese Drywall Manufacturer Held in Default - Failed to Repsond to Service of Process

Over the last month I have mentioned United States Senate Bill 1606 as being important for Process Servers to be aware of.  This bill would make it easier for U.S. plaintiffs to effect service of process on foreign manufacturers by requiring them to maintain a registered agent here in the United States.


An example of the problems associated with the current system for effecting service and holding foreign manufactures responsible is a case being heard in Louisiana. The following information is from a blog called the Injury Board:

An Alabama and Florida home builder filed a motion asking the court to rule against Chinese Drywall Manufacturer, because the company had not responded to the lawsuit after the builder was finally able to serve the company in China this summer.

The ruling came during a hearing taking place in New Orleans, LA, where dozens of lawsuits against foreign manufacturers, building suppliers, and homebuilders have been consolidated.

The Foreign Manufacturers Legal Accountability Act of 2009, introduced this summer, will make it easier to hold foreign manufacturers accountable in the U.S. court system by doing several things:

• Requires manufacturers to have an “agent” located in at least one state where the company does business that would accept service of process for any civil and regulatory claims.

• Companies would consent to state and federal jurisdiction, holding foreign manufacturers accountable to those judicial standards

For more detalis about this story please visit InjuryBoard.com http://bit.ly/3Adqzz