Electronic Service of Process (ESOP) has been the topic of discussion as of late. The first step in addressing this issue, in my opinion, is recognizing that it exists and will continue to be adopted/implemented in one form or another in jurisdictions all over, whether we like it or not. The second step in addressing the issue, again in my opinion, is figuring out what NAPPS and the Process Serving Industry can do to limit the negative impact of ESOP.
One of the things that NAPPS has done over the last year is our participation on an American Bar Association committee, which is in the process of drafting Best Practices for ESOP. It has been and continues to be our intent on this committee to offer our expertise and experience in an effort to protect the due process rights of the parties and our own self-interests. NAPPS has already had a positive impact on the drafting of these Best Practices. NAPPS played a role in having language added to the commentary of the Best Practices like “Use of conventional e-mail alone, as a medium for serving process electronically, is not sufficient to provide reliable proof of notice and an opportunity to respond” and “Preference for Personal Service of Process – electronic service of process should not replace or supersede personal service of process. Rather, electronic service of process might provide an additional method of service under some circumstances.”
Some have questioned the wisdom of our participation on this committee and have suggested that NAPPS is somehow misguided. I understand those that might see things that way, but I respectfully disagree with their perspective on the issue. The way I see it, in a perfect world, we can have our cake and eat it too, unfortunately, we do not live in a perfect world and we have to make the best of the issues we are faced with. In this instance, ESOP is real and it is in our future. We have an opportunity to help draft those best practices and NAPPS has chosen to take advantage of that opportunity. With or without us, the ABA will draft the Best Practices for ESOP. We can only help to protect our industry and members by being involved.
Another area where NAPPS has taken action is in response to a new law in South Carolina to allow in certain situations corporations and partnerships to be served electronically by sending an email to the email address on file with the Office of the Secretary of State. In response, NAPPS retained the services of a lawyer/technologist to write a position paper that was submitted to the South Carolina Supreme Court for consideration as they look to implement the new law. NAPPS is hopeful that our position paper will help the court realize that what they are creating is flawed and will not work.
My point is NAPPS has been working diligently under the leadership of MaryLee Rustand and the new president John Perez, to build upon the foundation that has been laid over the last year and half to address these emerging challenges.
Following the annual meeting, my committee held a telephonic committee meeting to discuss my participation on the ABA Electronic Filing Committee where further discussion was to take place on the draft ESOP Best Practices. In early August, I attended the ABA EF Committee in Chicago as an official member of the committee for the first time. Essentially, what was proposed was a system of ESOP that involves several concepts or components. Those concepts are as follows: Consent, Receipt, Waiver / Acknowledgement, and Reliable Proof. I could write several paragraphs about what those concepts mean as it relates to ESOP, but I would rather not carry on for several pages. The bottom-line is the committee agreed in principal to three of those concepts and split evenly on whether consent should be a necessary component of ESOP.
The committee ultimately decided to continue to work toward drafting language that would satisfy those who seek to have ESOP adopted as soon as possible without the requirement for consent as well as satisfy those that believe a balance between the promotion of technology and the necessary safe guards to insure due process is critical. NAPPS supported the position that consent needs to be an important part of ESOP. The next face-to-face meeting of the committee will likely be in February 2006 in New Orleans, LA.
For those of you who are interested in learning more about ESOP I think that it would be helpful to take the time to read an article published Lynch Legal Associates LLP on Electronic Service of Process, which can be found at www.lynchlegal.com/index.php?itemid=3. Another interesting piece of information is a press release I happened to see recently that gives some insight into what one of the major registered agent companies (CSC) is doing about ESOP and how they have developed a solution that allows them to intake and forward ESOP. The press release can be found at: www.ereleases.com/pr/20050307004.html.
All of these developments related to ESOP are obviously cause for concern. NAPPS is developing a plan of action moving forward to address the continued emergence of ESOP. NAPPS is continuing to monitor state and federal rules making bodies in an effort to insure our members and our industry is protected. I for one am hopeful that opportunities will present themselves as a result of our diligence that will allow our industry/members to remain a relevant part of due process.
On other fronts, I will be attending CTC9 (Court Technology Conference) in Seattle in September of this year. This event is the largest such event probably in the world that is dedicated to court technology, E-Filing and electronic access to public records. It will be attended by court administrators, judges, clerks, and all the vendors associated with providing software and services to the courts and the legal community. I will report on that trip in the next newsletter.
It is my sincere hope that I have helped keep you, the member, informed. If you would like to discuss ESOP or E-Filing, I am available by email at j.karotkin@CaliforniaProcessServer.com
