The prospect of e-service of process continues to
develop in the legal market. CSC and CT
Corporation, two of the largest registered agent
companies, have developed proprietary software
solutions that contemplate electronic transmission of
documents and electronic service of process that will
be posted and integrated into their electronic litigation
files. To view examples of what these companies are
doing, you can run CSC’s Flash Demo describing
their “Litigation and Management Services” from this
page: http://www.incspot.com/public/e6-01.html. You
can also view CT Corporation’s “Case File” product
by clicking on “Take the Tour” button on this page:
http://ctadmin.ctadvantage.com/CTWebAdminApps/
CTWebAdmin/Public/Login.aspx. Both demonstrate
how these registered agent companies will likely
receive, compile and display electronically served
documents.
On another front, Lexis/Nexis announced last month
their “LexisNexis Service of Process” product that
will compete nationally for process serving
assignments. Currently, this requires the physical
printing of papers to be served. However, in the
future they too will be looking at serving original
process electronically. You may view their February
21, 2006 press release here at this link: http://www.lexisnexis.com/about/releases/0872.asp.
Whether we as an industry like it or not, electronic
service is here, it is here to stay, and it is morphing
into different shapes. Presently, opposition counsel
services, or secondary services sometimes referred to
as Rule 5 services, are being performed regularly.
These services must conform to a 3 day delay in
federal courts, as well as in actions pending in some
state courts. Some state courts do not allow it without
court authorization or stipulation. The rules for when
service it deemed complete vary.
Throughout the past year, this committee has been
recommending a modification to our Best Practices
for Service of Process (BPSOP) to acknowledge what
the federal and some state courts already provide; a
delay in the date service is complete when service is
made electronically or by some other alternative
means such as mail or fax. Our emphasis has been on
secondary services, an area where many of our
members feel that private process servers do not
participate in. Upon reflection, and in consideration
of the comments that we have received, this
committee now feels that the emphasis should be in
the area of initial or original process, which our Best
Practices specifically address. Although the
reasoning for a delay in both primary and secondary
service still exists, the following amendment to our
Best Practices for Service of Process is proposed.
5. When service cannot be affected as described in 3
and 4 above, the next best methods of service is
alternate methods authorized by court rule or statute
upon a demonstration of the fact that service cannot
be affected by the methods in 3 & 4 above. This
would include service by mail, posting, and
publication. If service is authorized in a manner other
than by in-person delivery, service should be deemed
complete at least 3 days after service is effected.
Electronic service of original process will be adopted
in some form or another. The NAPPS (BPSOP) can
and should be a relevant voice and help shape the
discussions. A delay in the date service of an
electronically served document is deemed complete is
important. Electronic service should not be equated
to service by personal delivery, or be deemed
complete upon transmission or acknowledgement.
The 3 day delay in the proposed amendment to
Section 5 recognizes that when service cannot be
personally served, and a rule or statute authorizes an
alternative method, the date service is effected should
not be the same date as the date service is deemed
complete. It recognizes a distinction between the two,
and preserves the value of personally serving a
document. This delay should be contemplated when
the discussion about laws and rules regarding eservice
for original process are proposed and
ultimately adopted. Adoption of this proposed
modification now would be timely, especially since
the ABA will consider proposing a Model Act for
Rule 4 that will contain provisions for electronic
service of process.
This Committee also proposes a commentary to
accompany the section. The section recognizes that
that these alternative methods of constructive service
could be authorized by rule or statute. All of these
methods of constructive service are less direct, for
lack of a better word, and most often require that the
service itself be supplemented with mailing or
additional notice efforts. Service by publication
requires an effort to serve, and at least some effort to
locate the defendant before it is authorized by a court.
The court orders multiple publication dates before
service is deemed complete. Posting and mailing
often build in delays, contemplating that notice
cannot be complete until received, or presumed to be
received. E-service should likely be treated in this
same manner.
This will provide the ABA Committee with a
proactive NAPPS policy position for e-service,
especially when a Model Act for Rule 4 is discussed.
Guidelines for Forwarding and Receiving
Service Assignments
Everyone seems to want them but there is apparently
little support for adopting them as a formal NAPPS
policy. Therefore, these Guidelines will be used as
informal guidelines that supplement the existing
directives published in the NAPPS Membership
Directory and the Request for Service form, and will
be distributed at the Annual Conference in May,
2006.
This committee consists of eight members who are
reviewing and commenting on these proposals. They
are myself, Steve Janney, Lee Russell, Bruce Lazarus,
John Healy, Pete Schilleci, Felina Carice Swaba, and
Lisa Beaver.
