Robin's Ruminations

In my last post I compared e-service to snail mail service.  I also gave a definition of service of process - "The delivery of a writ, summons, or other legal papers to the person or entity required to respond to them."  In many states, over many years, process servers have fought legislation intended to allow the use of snail mail in any of its various forms.  We have been successful because we've consistently been able to establish that snail mail is not as reliable as service performed by a process server.  A survey conducted by WSPSA found a bad address rate for certified snail mail in the neighborhood of 35%.  And yet the courts consistently allowed judgments against people even when there was no signature on the green receipt card.

The question to ask now is, "How reliable is e-service compared to normal service?"  At this point I don't know of a way in which this can be reliably tested.  With the snail mail comparison we could actually go into the courts, pull files, and accumulate data.  But since there are no courts allowing e-service at this time there are no files to pull.  If anyone knows of such a court I would be very interested in hearing from you because a study of their files would be most interesting to perform.

To the best of my knowledge, e-service is currently being allowed only in those circumstances which would otherwise allow for use of an alternative form of service, such as publication or mailing.  The requirements, mainly in terms of diligence, for alternative service tend to be rather strict in Washington.  Or, to put it another way, if you want an alternative means service overturned then shortcut the diligence aspect of it.  Therefore I have no great concern with e-service - so long as it remains an alternative form of service.

But suppose that changes.  Jeff Karotkin has pointed out in his blog that some website's Terms of Use are including language which allows the owner of the website to serve its users via e-mail.  And how many of us actually read the ToU's?  I sure don't.  Which means many of us have probably agreed to such language when we've registered as users of some websites.  Now whether or not the actual use of that language will hold up in court is a good question.  It might or it might not but it wouldn't take much of a change in a statute or court rule to allow it allow it to be upheld in the courts.

Again, suppose the changes take place and service via e-mail is considered just as valid as in person service.  What happens then?  In my next post I'll look into my crystal ball and attempt to answer that question.