On November 19, 2005, this committee made a recommendation to the Board of Directors to amend
the NAPPS Best Practices for Service of Process (BPSOP) to distinguish between Primary Service
(service of summons or other initial pleadings) and Secondary Service (service of subsequent
notices on opposition counsel). The board agreed to meet and decide before the next ABA meeting
whether to add a Secondary service provision in the NAPPS Best Practices for Service of Process.
(The Committee Report to the board is posted here:
http://t_klein.tripod.com/NAPPSSBPBlog/11-17-05SBPReport)
Although the BPSOP was intended as a counter balance to the ABA Best Practices for Electronic Service of
Process, its failure to distinguish Primary from Secondary Service leaves NAPPS in a position of
effectively endorsing ABA Standard 1.65 that 1) advocates a policy for converting all court files to
electronic files, 2) gives 24/7 access for filing and retrieval, and 3) eliminates the need for
personally serving opposing counsel. It further sets the stage for expanding electronic service to
Primary services, where the discussion is currently centered. By distinguishing between the two,
NAPPS will be in a position to separate both types of service not being addressed in the current
ABA best practice discussions.
The reason for the change came about after a more thorough reading of the document that serves as
the underlying focus of the ABA electronic service of process considerations. The efforts set forth
their Best Practices for Electronic Service of Process was intended to "be fashioned consistent with
ABA Standard 1.65, Standards Relating to Court Organization". That document can be viewed online at
http://www.abanet.org/jd/pdf/standard_1_65.pdf
Using that as a back drop, the ABA's Best Practices for Electronic Service of Process, adopted on
September 9, 2004, sought to develop a means of implementing the Standard 1.65.
It presupposes that the courts will adopt electronic court filing completely. The ABA's Best Practices
for Electronic Service of Process encourages the use of e-service whenever a document is e-filed. When
read together, both standards render a process server irrelevant in either performing court filings or
service on opposition counsel.
Distinguishing Primary and Secondary Services
Primary service and secondary service laws are different because the meet different due process
requirements. Creating one Best Practice for both types of services lowers the due process threshold
requirements.
Electronic service vs. personal service on opposition counsel of a secondary service does not meet a due
process and fairness requirement. Service by e-mail on opposition counsel should not be deemed complete
the date sent. If authorized, it should have a built-in delay for when service is deemed complete,
perhaps analogizing it to a California Rule of Court that adds a 2 day delay for fax service, and a 5
day delay for service by mail. Equating e-service to a document personally delivered to the office of
the opposing counsel is disingenuous. All of the arguments equating e-service and personal service will
continue to blur the lines. The result will be to reduce the need for a personally served document,
whether it is for Primary or Secondary service.
Electronic Court Access
As a further concern, the 24 hour per day, 7 days per week access part of Standard 1.65 affects court
access and document retrieval is an issue for process servers and investigators. Much of that business
will go to competing e-filing companies that host the documents on their own site, the place where they
were electronically filed. Electronic access may be restricted to just the litigants. That model exists
at the federal level now. If allowed, electronically retrieved copies would be charged to an account or
a credit card. Lexis currently charges $5-35 for electronic retrieval of a court document they have
access to because it was e-filed through them. Alternatively, a messenger, process server or investigator
could be sent to court to obtain the paper copy of the document, costing $25+ and the costs for buying
the copies from the court.
Proposal
I feel that by not taking an affirmative position on Secondary services, and the court access provisions,
NAPPS is acquiescing to the ABA's Standards for e-filing and e-service to the detriment of the process
serving industry. We are indirectly supporting a policy that will soon decimate a key aspect of many of our members' businesses. Not distinguishing primary and secondary service in our Best Practices, and our failure to object, concedes an important part of our businesses. Losing equal access to the courts, court filings, and record retrieval will have a significant impact.
Distinguishing Primary Service and Secondary Service in our Best Practices will do that. It will further
allow us to address the 1.65 Standard as it relates to electronic access to the court records, filings
and preserving an open architecture.
Guidelines for Forwarding and Receiving Service Assignments
The draft of Guidelines for Forwarding and Receiving Service Assignments between NAPPS members is posted
on a blog for review and comment at http://members.tripod.com/t_klein/NAPPSSBPBlog/ These guidelines
would expand the provisions currently contained on the second page of the NAPPS Request for Service form
and would affect all members. Comments are trickling in. One controversial proposal of allowing a proof
of service to be held pending payment has gotten some attention and the consensus may be to delete it
from the proposal. Most members seem to want guidelines, and are quick to tell a horror story, but very
few members are commenting on these proposals. We intend to present them at conference for a more in
depth analysis and to determine whether these proposals should be implemented.
This committee now consists of eight members who are reviewing and commenting on these guidelines. They
are myself, Steve Janney, Lee Russell, Bruce Lazarus, John Healy, Pete Schilleci, Felina Carice Swaba,
and Lisa Beaver.
