Examining the Current State of E-Service

April 28, 2016
by ServeNow Staff
Videos

The State of eService

Recorded on April 28, 2016 with Jeff Karotkin

For years eService has loomed as a potential threat to the process serving industry. While most have ignored or denounced the practice, Jeff has implored the profession to embrace change and technology - or at the very least, be prepared. We've heard plenty of stories of service via Facebook, email and other electric means in recent years. Jeff, the voice behind the Service of Process Looking Forward blog and eSOPGuru on Twitter, will focus on the recent developments of a potential set of eService standards and how they may impact how service of process documents are routed electronically. Learn about laws and regulations, how this will affect the future of the process serving industry, what constitutes eService, what lawyers think, and more.

Jeff Karotkin has 30 years of experience in the process serving and court filing industry. He previously served as Vice President and General Manager of Personal Attorney Service, Inc. in Van Nuys, California. During his 9-year tenure, Karotkin led the company through its strongest growth period, ultimately positioning it for its sale. As Vice president of Strategic Development, for One Legal LLC he is responsible for providing the vision and strategy that has enabled One Legal to be recognized as one of the most successful electronic filing service providers nationally.

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Have questions or comments?

If you have questions for Jeff, want access to some of the materials he referenced today, or just want to say thank you, please email him at [email protected]. For more information on the coalition, email Jeff at [email protected].

Jeff, why don’t you give us a little more background on yourself. Give us the summary of how you got started in this industry and the path you took to get where you are today.

I began working part-time for my parents company in 1982 as a court runner/filer and process server. Over the course of the next 14 years he assumed responsibility for day -to-day operations of the company and ultimately the management of the company. I left my parents company in 1996 to become the general manager of Personal Attorney Service. Over the next 10 years he grew the business from 2.5 to over 6M in annual revenue, ultimately positioning it for sale to ABC Legal in 2007. Shortly after the sale he accepted a Vice President position at One Legal, he has led the company's electronic filing and electronic service expansion. One Legal has become one the largest electronic filing service providers in the country. One Legal was recently named among the top 20 “most promising legal technology firms” in the United States by industry journal CIO Review.

One Legal is one of, if not the most, innovative companies in this industry. Tell us about your role there, and the things you’re doing that get you excited to go to work in the morning.

I am responsible for One Legal existing electronic filing court relationships and expansion into new markets. One Legal is on track to add 15 new courts in CA alone this year. I manage the business relationships with courts and/or their case management system contractor(s). I am also the executive director of a lobbying coalition call Coalition for Improving Court Access, made up of approximately 18 and legal support service providers and electronic filing service providers. The coalition has retained a lobbyist and has a bill pending in the CA legislature that seeks to ensure that filing providers remain relevant in an increasingly challenging digital world. I am also called upon to provide guidance and be the subject matter expert for many of the other products and services we offer at One Legal.

Was there any one thing that made you want to pay attention to the electronics side of this industry as you were growing up?

It's really, for me, just trying to look into the future and predict what's coming and in doing so, what opportunities might exist that could be leveraged. Roughly 10 years ago I started paying attention to what was happening with the physical service of process and the shift toward electronic courts. I saw that though things had not changed in our industry for perhaps many decades, change was coming. I wanted to be a part of that, so I started the blog and did a number of seminars for both state and national associations. Even though a lot of those things that I talked about 10 years ago didn't come to be, I think that we're starting to get to that tipping point where those things I've been talking about are starting to happen.

We’ll get into specific technologies that facilitate e-service in a moment, but give us your definition of e-service? How does and WHY SHOULD a process server or a process serving firm stay remain in the mix?

The first thing to do would be to differentiate between what is primary service of process and what I would call secondary service of process. Often they are confused by the courts, our law firm customers, and even process servers. Primary service of process would be anything that would obtain jurisdiction over a person or persons (i.e. a summons or subpoena). Secondary would be those documents that are typically exchanged between parties (i.e. discovery requests, notices to opposing counsel). A lot of times that is done by mail but it's increasingly done online.

When you talk about electronic primary service of process, it's a summons or a subpoena that is sent to the recipient digitally. How that happens and under what circumstances varies by court jurisdiction, domestically or internationally.

30% of people are receiving notice electronically. I'm assuming that's one of the indicators of where we're going.

That's very true, and this whole "digital courthouse" thing is being paid attention to by large public corporations who see an opportunity. There is an opportunity for process serving and court filing companies to remain relevant as these companies digitize. It wasn't that long ago when even in California there were only a couple of electronic filing service providers, and now there's 14 or 15 that are certified. A lot of that looks like e-filing and secondary e-service, but as we get two or three or five years down the line I think it's natural for our customers to expect us to take that next step and fulfill service of process electronically when it's enabled.

What do you need to do to fulfill the requirements for being an electronic filing service provider?

There is an investment on the technology side, and it's not insignificant. Really there are two ways to approach it. You could build it yourself following the electronic filing standards. Or you could partner with an electronic filing service provider, which is popular in California for the mid- to medium-sized process serving firms. So, you could be your name and throw your shingle up on somebody else's platform and make it look like it's mine. That way you don't have to pay to build it, you just have to pay your service provider. Your investment, though, is really in how you service your customer base.

Does that make you an ESP or does that allow you to provide that service to your client?

That depends on who you ask. I don't think it's an important distinction. What's important is that you do what's needed to stay ahead and adapt.

What are the different mediums that you’re seeing used for e-service now, and what do you predict will be the common mediums in the future?

Whenever Facebook is approved by a court as a medium, obviously it makes big news because it's a big brand. I've seen service by Twitter, Facebook, email, electronic publication. There are all kinds of ways that courts have approved electronic service. One of the most known circumstances was about ten years ago, was the Rio in Las Vegas that found out there was an off-shore company calling themselves Rio Enterprises. They couldn't find them to serve them, so they petitioned a federal judge to serve them by several means, one of which was an email that was attached to the website. It happens in many ways. I've even seen a petition where a party asked a court to approve service of process by drone to access a gated community. The judge says no, but that's kind of how fast things are moving. There are two ways that electronic service of primary documents happen. Rule 3 allows parties to initiate electronic service of process on international service, where existing law doesn't prescribe another kind of service. Domestically, we don't see electronic service of process all that much unless it's a last result, and all other methods of service have been exhausted. Some might argue that service by email or social media is more effective than publication. I tend to agree with that. I am not a Facebook service of process unless it is the absolute last resort. I think it would be a disaster if that became the norm for our industry.

Are you seeing existing means being the method?

Rpost, an email add on, has a digital, trackable email product that has been embraced by a number of industries including legal. I've seen several instances where courts have ordered service with that product. Typically though, it's email and Facebook, but usually email.

In your opinion, what are the technical requirements to effectuate proper electronic service?

At this point there is no real technological standard for defining what electronic service of process of primary documents should look like. There are organizations and entities that have published what they thing the best practices ought to be. They're trying to influence how this turns out, because really it's in its infancy. It's not like you go to the Civil Code of Procedure and are able to see how you technologically serve somebody. The American Bar Association in 2006 drafted and adopted what it believed at the time what it believed were best practices for electronic service of process at the time. There's a laundry list of best practices that have been adopted by the ABA and recently CALSPro adopted best practices for electronic service of process as well, which was a big step for the organization. What it recognized is that this is happening whether people like it or not. Over the course of the next few years you're going to see some technical requirements, and along those lines there's an international organization called OASIS. It's a standards group, who, in this case, has an electrical filing component that has standards for supporting what they called limited electronic service of process. This could look like the attorney transmitting documents to process servers and sheriffs to print out and serve physically, or for the process servers and sheriffs to transmit documents to entities electronically.

When are we seeing electronic service of process occur?

We've seen a number of cases around the globe that are family law cases, so you've got a parental rights cases, custody cases, where somebody moves for a foreign country and so you're unable to serve them or find them. Typically we see instances where courts all over the world have allowed service that way. I think that will remain the exception going forward. Service is going to registered agent companies, going to big facilities like hospitals or government entities like subpoenas going to hospitals and law enforcement, summons and complaints going to the state department of financial services. Those are the areas I would be most concerned about. The serves that are the easiest for us today to fulfill as process servers are the ones we're going to see more e-service happening. You'll see a lot of companies agreeing to accepting through electronics. If I weren't a process server I might say that it makes more sense to be doing service of process electronically because digitizing that process just seems more efficient.

Are there specific instances of e-service that have been in the news that made you question the legality, or do you have examples of e-service gone bad?

I can only think of one case where the courts had to step in and say that what the plaintiff did was improper service. It happens all the time in the physical world when attempting service. It was actually a physical rental dispute. In the lease agreement the landlord had a clause that said if they needed to evict the tenant they could serve the person by email. And so, one day the tenant doesn't pay their rent and the guy sends an email of a notice to pay rent or quit. It became a dispute as to whether that service was proper. The reason it wasn't held as proper, wasn't that the parties had consented, but that they didn't define how that service would work (i.e. which email address). If the lease had spelled that out the judge said he would have allowed that service to stand. People aren't just defaulting to sending documents via email, so you don't see a lot of cases where electronic service has gone bad. I cringe every time I see social media used. I was in a meeting with court executives and one of them actually said that you can serve summons and complaints by Facebook now. Not that that's necessarily not true, but again, that is the exception and it doesn't happen unless you've exhausted all other forms of service.

How can the small to mid-size process serving firm prepare themselves for e-service requests now, or in the future?

There's no road map that I can point to that says here's what you do. There are no guarantees. Our industry is not immune to destruction. I hope we don't become the taxi industry that's obstructed by Uber. What I would do is make sure you're keeping up on what's happening in your state and at the association level. Watch what's happening in your legislature. There are maybe five or six states right now that have, on the books today, some statement that allows documents to be served electronically. Virginia allows corporations to be served electronically, levies can be served in Kansas electronically, Utah even has a form. Watch what's happening in your courts. Watch what's happening in your legislature. And get educated and find out what's going on. Go educate yourself and make sure that if your clients do call on you that you're not stumbling to answer their question. More than anything it's just a matter of paying attention and getting educated. I try to tweet relevant information and post it to Facebook groups and my blog.

If you want more information on these rules and cases, email Jeff at [email protected].

Why do you think e-service and social media service is getting a lot of play in the news?

They're sort of unique in nature so they do get PR. Judges have had the ability to prescribe alternative forms of service longer than I've been around. Back in the 80's it was fax. You see it more and more because we live in a digital age where access to information is higher. I suspect there are far more than we're conscious of at this point.

Have you seen or do you foresee it going through video communication programs like Skype or Google Hangout?

Yes, absolutely. An interesting development you may not know. Virginia is the only state that allows for remote notary, and it is done by webcam. There are companies that have built products that allow me to come to the website, send the document to the person digitally, hold up my ID to the camera to verify my ID with the notary, the notary signs, sends it back, and you're good to go. If a notary can be done that way. Sure, why not Skype. Again I'm not saying that's what I would prefer to see happen. If someone can attest to the facts of that transaction, that would be a preferred way for e-service to happen.

I think you’ve given us a great overview of the current state of e-service. How do you see e-service evolving in the future - in the next 5 years or so?

I would not be surprised if within the next five to seven years that we see summons and complaints going to registered agents or government agencies done almost exclusively by digital means. That's a big deal. Today even within our absent rules and the enabling statutes, we see process served extra-judicially, meaning without statute or authority to serve it that day. If you walked into a registered agent's office, you might see as much as half of the process that goes to that entity coming through mail, and they take it. So why not electronically? If I were them, I'd want to find a way to streamline that process. I think those are the most likely to erode our business in the next five to seven years, but things change fast. Almost 40 states have similar statutes where some department suddenly has documents going to their registered agents electronically. Registered agents and government agencies are probably where we are going to see change over the next few years.

Why do you think the role of a process server will remain safe as e-service becomes more prevalent? Or do you?

Well it's certainly my hope and desire that we do, and when you have forward-thinking associations like CALSPro who have embraced best practices, that's encouraging. I think that there is absolutely an opportunity and we need to call on our state and national associations to start thinking more seriously about this threat, and also look at it from an opportunity perspective. Better to have a seat at the table in crafting what that looks like rather than being left out in the cold. It's not a matter of if, but of when.

electronic service of process edu

Image courtesy of Jeff Karotkin http://serviceofprocesslookingforward.blogspot.com/

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