Will Service of Process by E-mail Affect Process Servers Anytime Soon?

• July 22, 2010
• by ServeNow.com Staff

Service of process by e-mail has loomed on the horizon as a possible threat to business for process servers for at least a decade. Several plaintiffs have petitioned the courts to serve notification by e-mail; some have been successful while others have been rejected. Service of process by e-mail raises many questions for process servers: How long – if ever – will it take for service of process by e-mail to put a noticeable dent in process servers’ business? What are the courts saying about the subject? Is it time to start thinking about how to someday incorporate service of process by e-mail into process server businesses?

ServeNow.com spoke with Martha Arias, a Miami-based lawyer, involved with immigration law and Internet technology law. Arias has researched court cases regarding service of process by e-mail because it affects several parties, including legal professionals, corporations and defendants facing legal action. She offered her opinions on how it might change the landscape in the process server industry. For further insight, we also contacted Bob Musser, Florida Association of Professional Process Servers (FAPPS) president, and process server/industry blogger Robin Mullins.

The current legal status of service of process by e-mail

It’s nearly impossible to find hard numbers concerning how often service of process via e-mail has been and is being used. Arias said the only way to know would be to poll individual courts about how many such instances they have allowed. She pointed out that only a few court cases have surfaced over the past decade, which could mean that courts have been allowing service of process by e-mail and nobody has protested. Arias singled out two cases that demonstrate courts’ differing reactions to the issue.

In Michigan, in the case of McCluskey vs. Belford High School, one party wanted to notify the other about pending legal action in three ways: 1. Send e-mail to the defendant’s e-mail addresses (which were not proven to be reliable addresses), 2. Post notification at the county courthouse, and 3. Place notice on a website they created called www.belfordlawsuit.com. The court rejected the plan, saying it was unlikely to result in an actual notice of proceedings to the defendant, and that it wouldn’t give the defendant an opportunity to be heard. According to Arias, although different states have different rules about civil procedure, those are the two key aspects that most states require regarding service of process.

In New York, the court allowed service of process by e-mail in Snyder vs. Energy Inc. In this case, the plaintiffs told the court that they had sent notification by e-mail to the defendant’s commonly known company e-mail address requesting a physical address to serve papers, but the defendant never replied. The plaintiff sent multiple e-mails to the defendant’s e-mail address, which was deemed valid and legitimate, and the e-mails were not rejected by the system. The court said that in this case, their attempt at notification by e-mail was reasonably calculated to give the defendant proper notification as well as gave him the chance to be heard.

These cases are federal cases, which means that they have set precedents because of the rulings. Arias emphasized that these cases could still be appealed, or other cases could come along that challenge the rulings. She said that whether or not service of process by e-mail becomes more widely allowed will likely be determined on a state-by-state basis.

In addition to states having varied civil procedure rules, the political climate can also affect courts’ decisions, she said.

“New York and California are always the states to take the first step. They’re more liberal states. New York said yes, and I think New York will continue to say yes,” Arias said. She said those two states and Florida might be more inclined to allow service of process by e-mail, but that the more conservative states in the central U.S. such as Michigan could be slow to follow.

Obstacles to widespread use of service of process by e-mail

Bob Musser, FAPPS president, said service of process by e-mail is less dependable than traditional service of process or electronic service of process, where there is a “complete verified ‘handshake’ system between two computer systems.” Musser explained the technical difficulties that make it a less viable option than other methods:

“You have no idea if your ‘service’ was ever seen or even received by the actual intended recipient. There is NO working implementation of a ‘return receipt requested’ feature, the spec for e-mail does not include it, and anything that purports to do it is easily defeated,” Musser said.

Arias acknowledges that service of process by e-mail could someday hold benefits such as lowered costs for corporations, reduction in trees cut down for paper documents, and increased speed of service. But, there are still many logistics that must be mulled over in courts before it becomes a common practice. Arias raised several possible obstacles that service of process by e-mail faces in gaining acceptance, including:

• Not everyone has a computer, e-mail address or access to the Internet.
• So many people and corporations have firewalls and filters that it’s hard to ensure that your e-mail won’t be trapped in a spam filter.
• Although computer literacy is spreading rapidly, many people still don’t know how to use computers and are therefore less likely to receive or understand notification served via e-mail.
• The large population of immigrants in the U.S. can present a language barrier. Lawyers can have paper documents translated, but Arias wonders how effective e-mail will be in serving people who speak other languages and ensuring that they understand what they are reading.

Potential impact on process server businesses

The rate at which service of process by e-mail is being discussed in courts suggests that process servers shouldn’t be overly worried about it affecting their businesses anytime soon. Their traditional method of service is still the most widely accepted and trusted method for courts.

Arias explained that she thinks the process server community is going to be fine for the foreseeable future.

“I think it’s going to be many years from now when it will be in effect without any problems. It could be 10 years, maybe more than 10 years,” she said. “This is something that must be really working properly in order for it to be implemented properly.”

Robin Mullins, a founding member of the Washington State Process Servers Association who frequently blogs on topics related to process service and technology, said the naturally conservative nature of the courts has slowed the use of service of process by e-mail. In his blog (www.4thcorner.com), he compared service of process by e-mail and other non-traditional methods to fairly recent cases involving service of process using Facebook.

“Today Facebook is the ‘be all/end all’ when it comes to socializing on the web. But the courts recognize it wasn’t the ‘be all/end all’ yesterday and probably won’t be tomorrow. So although there have been some serves allowed using such social networking sites, the courts have shied away from allowing such service to become a daily practice. The same applies to the use of e-mail, fax, snail mail, and newspaper publication,” Mullins wrote.
What can process servers do while courts debate service of process by e-mail?
The best thing process servers can do at the moment is stay informed on on the issues. Most associations have technology committees or members who monitor happenings on topics such as service of process by e-mail. If any developments occur that might eventually impact the industry, it can only help you to know about it right from the beginning.

You can also make an effort to learn about computers and the Internet, and to delve into the abilities and limitations of e-mail. Becoming well-versed in these topics will help you truly understand technology’s growing impact on the process server community.

At this point, service of process by e-mail doesn’t appear to be an immediate threat to process servers, and it’s a guessing game as to when or whether it will become widely accepted, but the more process servers who are fully informed the better.

To read more about technology’s impact on the process server industry, check out Jeff Karotkin’s column titled “Is Personal Service of Subpoenas Coming to an End?”

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