Electronic Service of ProcessDue Process and Confidentiality

Requirements

John H. Messing3900 E. Broadway Blvd., Suite 201

Tucson, AZ 85711

johnmessing@lawonline.biz

Copyright JHM 2004

Paper Service of Process

The process server hands, ie., pushes the paper off, to the defendant

Electronic Service of Process

The defendant pulls the electronic file to it.

Why?

Electronic Service of Process

The pragmatic and economic advantages of electronic files over paper to corporations and their counsel are impressive and outweigh a fear of encouraging litigation.

The case for using electronic files in general

•Storage

•Searchability

•Management

•Instantaneous transmission

The case for using electronic service of process in particular

(corporate defendants)•Reduced points of reception for service of process (hopefully only one)

•Lessened chance of loss or confusion

•Lowered cost of management

The case against electronic service of process in general

INSECURITYINSECURITY•Modification

•Forgery

•Internet downtime

•Hackers

Legal PrecedentsRio Properties, Inc. v. Rio International Interlink, 284 F. 3d 1007 (9th Cir. 2002)

•Foreign defendant

•No physical address

•Courier forwarded package

•Attorney telephonic contact

•Defendant website listed email address

Legal PrecedentsRio Properties, Inc. v. Rio International Interlink, 284 F. 3d 1007 (9th Cir. 2002)

•Court approved email as one alternative form of service on foreign defendant (FRCP Rule 4(f)(3))

•(Also on LA attorney)

•(Also on courier service)

•Upheld by appellate court

Legal PrecedentsRio Properties, Inc. v. Rio International Interlink, 284 F. 3d 1007 (9th Cir. 2002)

“If any method of communication is reasonably calculated to provide RII [the defendant] with notice, it is surely e-mail – the method of communication that RII utilizes and prefers.”

(Trademark dispute and Internet registration issue over name RIO used in sports gambling.)

Legal PrecedentsIn re International Telemedia Associates, 245 B.R. 713 (Bkrptcy, N.D. Ga. 2000) Trustee was only furnished with email address by a foreign “transient”.

Hollow v Hollow, 747 N.Y.S. 2d 704 (Sup. 2002) Divorce. H relocated to Saudi Arabia. Declared himself resident of SA. Only way to contact was email account. Wife filed. Impractical to serve conventionally. Could not penetrate compound. Employer Company refused service. Email only practical means. State statute NOT limited to alternative service of foreign defendants.

Legal PrecedentsHollow v Hollow, 747 N.Y.S. 2d 704, 708 (Sup. 2002):“While this court is cognizant of the concerns associated with service by e-mail, including the difficulty of verifying the defendant’s receipt of the message… a constitutionally proper method of effecting substituted service need not guarantee that in all cases the defendant will in fact receive actual notice.”

Other Precedents•Email service authorized for pleadings served between counsel –

–FRCP Rule 5(b)

–If consented to in writing (in advance usually) by the person receiving the pleading

–Effective upon transmission unless the sender learns it was not received.

•Waiver–Informal request for acceptance of service by sending registered postal letter attaching the summons and complaint

–FRCP Rule 4(d)(2) procedure

–Failure to comply may lead to an award equal to the amount of the costs of conventional service of process incurred as a result

Is it legal?Court Rules will have to be changed to accommodate official acceptance of electronic service of process.

BUT, in the meantime …

If the party doing the service and the party accepting the service agree, then as a practical matter, electronic service of process will be effective, even absent rule change.

Why?

Because a defendant must first challenge service; otherwise, it is not an issue before the Court.

Can a defendant renege?•Suppose a defendant agrees in writing beforehand not to challenge electronic service of process and then finding it is losing, reneges.

•As a practical matter this will only arise if service occurred at the tail end of the permissible period and a statute of limitations defense can be raised.

•Otherwise, the plaintiff will simply re-serve conventionally.

•So conventional service can still be used in late-filed cases to avoid a possible statute of limitations problem with electronic service of process.

ConclusionElectronic Service of Process could be implemented today without Court intervention if plaintiffs and defendants agreed in writing how to accomplish it and not to challenge it, even before court rule change.

Court rule change legitimizing it would most likely follow naturally.

Constitutional Requirements“To be sure, the Constitution does not require any particular means of service of process, only that the method selected be reasonably calculated to provide notice and an opportunity to respond.”

Hollow v. Hollow, citing Mullane v. Central Hanover Trust Co., 339 U.S. 306 at 314, 70 S.Ct. 652.

Best PracticesCommentators, including some members of the ABA Electronic Filing Committee, believe that insecurity of Internet transmissions should require a higher best practices standard for electronic service of process using available technologies:•Acknowledged receipt by defendant or witness•Cryptographic security of transmissions.

Receipt for Electronic SoP•Required receipt, without exception•Not available in conventional email programs

–Optional only

–Can be safely ignored

•Not available, even optionally, in most browser based webmail: hotmail.com, yahoo.com•Reliance upon a reply, acknowledging email is unreliable – many people just won’t do it.

Cryptographic Security•Encrypted documents for privacy and confidentiality in transit, even as to some public or semi-public records.•Digital signatures to report any changes in the documents immediately. The signer can also be correctly identified.•Available today with existing technology.

The Goal of Best PracticesTo allow the execution of a return of service, with high assurance that the documents were actually received, exactly as they were sent, without modification, or unauthorized access.

The Fall-Out•How will savings from efficiencies of electronic service of process be distributed? •Probably some to users (attorneys and their clients), with the rest to others.

Affected Entities•Attorneys (and their clients)•Process Servers•Electronic Filing and Service Entities•Registered Agents (statutory agents)•Corporate (and other) defendants

The Role of NAPPS Community

•Facilitator – National Notary Model - Enjoa

(Scot Kleiman)•Opponent – postal mail battles

John H. Messing3900 E. Broadway Blvd., Suite 201

Tucson, AZ 85711

johnmessing@lawonline.biz

(520) 547-7933 (o)

(520) 270-1953 (c)

Copyright JHM 2004