CALSPro Adds Electronic Service of Process to Their Best Practices

• March 14, 2016
• by Stephanie Irvine
• Technology
• Associations

It’s undeniable: electronic service is knocking on legislative doors, hoping to transform the way civil process service is conducted in states across the U.S. Although staunch supporters of traditional means of service feel that electronic service could never take over, the California Association of Legal Support Professionals, who still support traditional service, have added it to their Best Practices.

The discussion came up at a conference two years ago as to how CALSPro was going to respond [to e-service becoming more prevalent] and what our view of e-service is.

Chairman of CALSPro’s Legislative Board, Steve Janney

Context: California E-Service

California has been ahead of many states in the U.S. in terms of its acceptance of alternative means of service. It was one of the first states to implement e-filing, as well as limited e-service. Currently in California, e-service is allowed if consent is given by both parties, which is a bit more liberal than other states that require a judge to sign off on it. Despite this, there are some cases in which personal service is still required. OneLegal provides a great overview of California E-Service if you are looking for a boiled-down version of the law.

Process: Making E-Service a Best Practice

CALSPro’s Legislative Board was the committee directly responsible for the addition of e-service into the Best Practices. A member of the CALSPro Board and the Chairman of CALSPro’s Legislative Board, Steve Janney, advised that CALSPro has been considering adding e-service for the last couple of years, and after a lengthy review process that included revisions and exposure to subcommittees and the board, it was passed in December. “The discussion came up at a conference two years ago as to how CALSPro was going to respond [to e-service becoming more prevalent] and what our view of e-service is. It’s been in discussion for a couple years. We just felt it was time to make a decision on where we stand, and get that out publicly, almost before other people did. It was reviewed several times by the subcommittee, then several times by the [legislative] committee, then the board even made a couple changes before it was approved in December. It was an extensive process.”

It’s been in discussion for a couple years. We just felt it was time to make a decision on where we stand, and get that out publicly, almost before other people did.

Chairman of CALSPro’s Legislative Board, Steve Janney

Meaning: Why a Best Practice?

CALSPro’s stance on e-service isn’t to open the floodgates to allow any type of e-service. By defining the conditions and terms of what is acceptable e-service, CALSPro in effect is embracing change but in a way that still preserves due process.

Janney explained that allowing electronic service wouldn’t be much different than service by publication: “To electronically serve an individual, you would have to get a court order. There’s a rule that says if you can’t serve someone, a judge can allow any type of service that would be the best to give notice. That’s how service by publication works, as well.”

While CALSPro is accepting of e-service, its acceptance is extraordinarily limited. Janney explained the situations in which e-service is acceptable according to CALSPro’s Best Practices: “[Defendants] have identified that they will accept service of process at a specific email address. The subject line should identify what’s happening. Once it is opened, the document won’t be there, but a link is there. Clicking on the link verifies that you (the intended recipient) have received the document at a specific date and time. It’s voluntarily set up in advance specifically to receive those documents and nothing else. This is limited to corporations and all set up in advance — it’s knowing and voluntary. They are consenting to it and waiving hand service. There’s also a process for them to opt out if they change their minds later on. Registration is renewed yearly.”

Is This Just a Harbinger for More Concessions to Come?

By accepting and supporting e-service, some may feel that CALSPro is betraying the industry — that absolutely no means of electronic service are acceptable — and worse yet, that electronic service will take over if any concessions are made.

However, Janney made it overtly clear that this kind of e-service is an exception to the rule: “It should be very limited to corporations. There are six things that must be done in order to verify it. If someone answers it, then it’s not a problem. If you answer it, then you’ve verified you received it. If you don’t answer it, then it’s questionable, and the court needs to be able to trust the service. The manner of electronic service should mimic the standards for hand service.”

But why not include social media or other electronic means? Can people not acknowledge Facebook Messenger messages? If it’s about people acknowledging service, then why should the manner of service matter? After all, corporations are still made up of people, right? Janney explained why e-service should be absolutely limited to corporations and why service by email or social media just wouldn’t work for the general population: “We don’t know someone will get it, and it’s not verifiable. In the argument for email/social media, the argument is easy — I could email you a copy of the summons and complaint, but I don’t know if you’ve gotten it. I can’t verify it and file a proof of service. That’s the basis of due process now. Email and social media are simply not verifiable.”

Furthermore, service of process, as those in the industry know, is usually the first step in someone getting bad news (divorce, court appearance, foreclosure, collections, etc.), having service be verifiable isn’t just important because it’s an important legal right — it’s about the consequences that individuals may face as a result, and the disadvantage they are put in if they don’t receive important court documents. Janney echoed this sentiment and emphasized why service must be verifiable: “Due process isn’t me just notifying you. It’s the beginning of the process that could end up seizing your property and forfeiting your rights. I can’t just say I emailed it to someone.”

On the other coast, Amanda Sexton, President of the New Jersey Professional Process Servers Association (NJPPSA) and Director of Corporate Development at DGR – The Source for Legal Support, commented that “With regard to e-service, we’d like to see it go away and never see it again, but it’s inevitable. We know sticking our heads in the sand won’t help, either. It’s important to get in front of the conversation and stress the importance of a trusted third party — there needs to be someone in the middle regarding e-service to make sure due process happens.”

What Does This Mean? The Future of E-Service

Evolving means of communication are a part of life in the modern day world. However, changing technology and communication methods shouldn’t mean that the right to due process is eliminated. Janney asserted that “Technology changes everything, but what it cannot do is change our core values. One of the core values is due process.”

With that said, it appears that in some situations, the process serving industry has been able to embrace e-service while still upholding due process. And now that’s been made possible, the industry will likely slowly start to evolve.

Janney concluded the interview with a final thought: “As we say in our opening paragraph, the foundation of our legal system is due process. That begins with an entity being placed under the jurisdiction of the court. Without a fair and trusted process for notifying someone, due process becomes weakened. We have fought these battles from the late 1960s, with bills introduced to allow service of process by first class mail. It’s easier and cheaper. Our emphasis is that easy and cheap doesn’t apply to notice. It must be verifiable, trusted and individuals must be guaranteed due process.”

As for whether or not other associations are looking to echo the moves of CALSPro, Sexton explained, “We always look to state associations everywhere. Realistically, everything is so different in each state, but we still look to see what’s coming. They [CALSPro] are much further along than New Jersey, so it will be a long time before we adopt a lot the things the other states do.” She concluded by explaining that “We want to be part of the discussion, and make sure process servers are a part of the discussion.”

Whether or not e-service is an acceptable means of service is certainly a passionate discussion that will continue for years to come, especially as it appears that changes are happening sporadically throughout the industry.

What is your state doing, and what do you think about the statement CALSPro has made? Make your voice heard in the comments.