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

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.  

HAS NAPPS LOST ITS WHY?

This post is my perceptive and opinion based on years of first hand experience "inside baseball" analysis.


A few newsletters ago the Administrator Gary Crowe wrote about what he believes NAPPS is and what it does and how it does it.  From my perspective he was telling the members what was important and how things are supposed to work with the association as it relates to the members rights and responsibilities.

Whether you are or disagree with his assessment is not really important, what his message told me is that he and several others of the inner circle of NAPPS leadership over the years have lost sight of “why” NAPPS is important and was founded in the first place.  Notice I did not say they lost their way.  You would have to have a clearly articulated plan and an idea of how you intend to execute on that plan in order to have lost your way.  Without an idea of where you are going and how you hope to achieve your goals and objectives you can’t lose your WAY.

I contend that everything that NAPPS does and doesn’t do should flow from or be the result of its WHY.  Why does NAPPS exist?  Why is NAPPS important? Instead it appears to me as evidenced by the Administrators message and the messages of the leadership everything has become about WHAT and HOW.

In the early years of NAPPS it did have a very clear sense of WHY; not anymore.  NAPPS the brand, NAPPS the organization has lost some of its appeal, it is no longer as special as it once was, it no longer commands the respect and stature it did years ago.   It has lost its WHY.
Let’s face it, there are many process server directories in print and online, some arguably do a much better job providing their members and subscribers with real and meaningful value.  Members and non-members alike have gravitated toward other directories and forums to educate themselves, share ideas and network with their peers.

NAPPS can no longer differentiate itself and its brand from the others as the leader in the industry.  This was not always the case.  It was once like APPLE (the company) everyone wanted to be a part of it, everyone wanted to be associated with its brand.  Being a member of NAPPS differentiated you as a professional.   Unfortunately that is not as true as it once was.
If you were to ask an avid skier, cyclist or fly fisherman and someone asked you why you participate in those activities, you will likely answer that question be demonstrating your passion for that activity.   If you ask a NAPPS member why they are a member or a board member why they want to serve I contend that they will not be able to answer you with the same passion and enthusiasm as the fisherman, cyclist or skier.

I contend that the reason is because in part NAPPS has lost its WHY, its reason for existing, its focus on what is truly important, the reason the organization was started in the first place.  NAPPS was about preserving and protecting the private process serving industry.  That was its mission, its core reason for existence, its purpose.

Today, NAPPS has become about differing segments of members fighting over the pie.  Fighting over money, board seats, it has become about the personalities that are unwilling to set aside their egos for the good of the organization because they fear they are losing control.  If NAPPS is good at anything lately it is good at reacting to threats and even that is debatable.  It certainly is not looking for opportunities to ensure we as an industry remain relevant.

NAPPS was created with a clear set of objectives, its purpose or why was to ensure that private process and their role in ensuring the due process right of litigant was protected.  Simply put the WHY was always about making sure that private process servers remained relevant.

If you accept my premise and if any of it resonated with you, I content it is time that NAPPS found its WHY.   Once found, NAPPS should hold a strategic summit with leaders from all the state chartered associations to discuss and adopt a new or refreshed purpose or WHY.   With the WHY formally agreed upon our leaders should then go about defining a clear set of short and long term objectives that flow from that WHY.  Then and only then will NAPPS be able to measure it success against something meaningful.  In order to effectively execute on the goals and objectives NAPPS needs to make sure that someone  is ultimately responsible and accountable for producing results that get us from where we are today to where we want and deserve to be tomorrow.

Unfortunately in the last few years the leadership and management structure not only doesn’t support or embrace that kind of accountability and transparency, it resists it.  The time has come for NAPPS to reexamine its WHY and get back to what is important and why it was created in the first place.   This kind of commitment requires courage and leadership.  It requires willing and able participants who are truly invested in bringing NAPPS from the cusp of falling from greatness.

Let’s hope that this coming year doesn’t become a repeat of the last few where the agenda included constant fights over minutes for no good reason, kicking out a duly elected board member, issuing sanctions against those that dare to ask difficult questions and demand more accountability and the constant disregard for our established published policies.

Based on what I saw this last weekend there were a few glimmers of hope but overall it appears that this year will be about hunting down and lynching those that have been critical of NAPPS and some of its leaders.  One of the attendees this weekend actually called for hangings.  If the goal was to create an angry irrational mob then the leaders succeeded.  If that is what we can expect NAPPS it is truly doomed to fall from greatness.   It is time to heal and rise of above the BS and put this ugly chapter behind the organization.   It can’t afford to waste another year; the status-quo will not carry the day.

By Jeff H. Karotkin