Robin's Ruminations

In my last post I proposed the following thought experiment:  "Suppose the changes take place and service via e-mail is considered just as valid as in person service.  What happens then?"  There are several possibilities.  The outcome would depend, in large part, on exactly how the new rules are put into effect.  I'll try to dream up 2 or 3 scenarios, perhaps one of you will be able to suggest some others.  For the moment, at least, we're only talking about initiating documents, such as the summons and complaint or those of a similar nature whose purpose is to initiate an action.

The Wild West Scenario.  Suppose the rules were changed to allow service to be effective by simply sending an e-mail containing the summons and complaint to the defendant's "e-mail address of record."  The e-mail can be sent by the attorney or the plaintiff if he is acting pro se.  An address of record would be any e-mail address shown to be used by the defendant.  This address might be supplied by the defendant when he signs a contract or otherwise publishes it or lists the address in the public domain or in any way uses the address for correspondence.  Such an address might be found on a person's (either real or in law such as a corporation) website or social networking page.  It might be found during the course of e-mail exchanges between the parties or discovered through some sort of private investigation or through an examination of some type of public record.  

In any event, the bottom line in this alternate universe is there would be very few process servers because their services simply would not be needed - for the most part.  I suspect those few remaining diehards could demand a premium payment for their services in serving those few individuals who are such Luddites that they don't have e-mail addresses at all.

This is science fiction and I don't see it happening within my lifetime (I'm almost 57, be kind and give me another 20 or 30 years).

The Not So Quite Wild West Scenario.  In this alternate universe the rules are changed such that the e-mail must be sent by a disinterested 3rd party (process server) using very specific software which would keep a complete and accurate record of everything relating to the service e-mail.  For instance, it would record each of the Internet servers through which the e-mail passes on its way to the defendant.  It would record the time of arrival on the defendant's computer along with the time the e-mail was opened and how long it was open.  The e-mail would be structured in such a way that no spam filter could block it and it could not be deleted until it was opened.  The process server's software would be subject to some specific requirements, such as being unhackable, etc.

I think there is a reasonable likelihood this scenario, or some variation of it, could become a reality at some point in the not too distant future.  A number of technological advances will need to occur as well as some social and legal changes.  If it does come to pass then, once again, I see the number of process servers across the nation being reduced dramatically.

Also, I wonder who will be the disinterested 3rd party.  Will it be a process server?  Some kind of private business?  Or will it be the court itself or some combination of the court and someone else?  Will there be any need to involve anyone outside that formal legal system itself?

The Most Likely Scenario.  E-Service has a place in our future, I don't doubt that at all.  Some participants are betting it will be a big part and are pursuing business models based on that possibility.  But I'm not so sure, at least not for the near to mid future.  I think this because the legal system is cautious and traditional.  There are still a lot of technological issues to resolve.  But there are also a number of legal and social issues which must be addressed.  We will see (as we already have) the courts allow the use of e-service as an alternative method of service but not as a primary method.  For instance, here in Washington service via snail mail has been allowed for many years but only under certain restricted circumstances.  Anyone wanting to use snail mail service is required to obtain a court order allowing its use and must convince the court substantial efforts have been made, without success, to serve the defendant using personal service or one of its variations.  

So I am not afraid of e-service.  I am not concerned it is going to put me out of business tomorrow or even 10 years from now.  I intend on watching its evolution and will make every effort to be prepared to fill my client's needs as they morph due to legal, social, and technological changes.  I will also attempt to influence those changes as they occur.

Conclusion.  Jeff Karotkin has been writing about change for some time.  I'm sure he and I disagree on certain specifics regarding e-service but our areas of agreement are far greater.  He is correct in arguing we must be prepared to change as the world of process serving changes around us.  To do otherwise is to have our head stuck in the sand.

Finally, in my opinion, we must not give e-service a boost by showing ourselves as dishonest or incompetent.  Forgery and sewer service must stop and those who perpetuate it must be brought to justice.