(2/16/05)
Process Server Alert!
Electronic filing (e-filing) of court documents and electronic service of process (e-service) will adversely affect your businesses.
Simply stated, e-filing is just another form of delivery of pleadings and other legal documents to the courthouse, recordation of those documents in a court case management system, and return of those documents to the attorneys who filed them with verifiable proof that they have been filed. Additionally, this procedure could include the electronic transmission of the filed documents to a process server for service of process, or to a party directly without using a process server.
As with e-filing, e-service is just another method of delivering documents to the parties that should be receiving them. E-service, using a United States Postal Service Electronic Postmark (USPS EPM), or some other technology, is just another form of acknowledged mail service or delivery.
Electronic filing projects are taking place all over the country. See http://www.wendytech.com/efilingprojects.htm. In the federal court system, practically all federal districts have implemented e-filing projects. In many of the state courts, e-filing projects have also been implemented. The concern for process servers should be that with the implementation of more and more e-filing projects, electronic service of process will inevitably follow possibly bypassing the traditional role of the process servers completely, or significantly reducing the types and volume of process served.
The movement to bypass process servers has already begun. Many of the state and federal rules or statutes allow for electronic service of pleadings between attorneys who agree to be served in that fashion. In addition to these consensual arrangements between attorneys, e-service has begun to be established in some of the state courts. In South Carolina, the legislature passed a law effective July, 2004 adopting the Uniform Electronic Transactions Act and mandating that all corporations and partnerships register an e-mail address for service of original process (Summons and Complaints) under SCRCP 4(d)(3) and 4(d)(8). The South Carolina Supreme Court has issued an Administrative Order requesting comments from participants involved with e-service of documents between parties under SCRCP 5(b)(1) by February 28, 2005 so that a determination may be made to "extend (e-service) at a later date to service of summons and complaints." See South Carolina E-Service Laws Relating to E-service.
In Clark County, Nevada, the e-filing vendor in that jurisdiction will file Family Law documents for $6.00, and E-Serve the respondent for an additional $10.00. See Clark County (Las Vegas), NV Local Rules Regarding E-Service. The respondent must sign a "Consent to Service by Electronic Means" form. The form is posted on the Clark County web site, and does not distinguish it as a family law form. Expect this practice to expand to other civil matters in that court.
In San Francisco Superior Court, California, as of 2/14/05, the second draft of a proposed local rule is to be circulated privately among asbestos litigants to be finalized. See San Francisco Superior Court Local E-filing Order. The prior draft of the proposed rule is difficult to find as the link to the proposed rules section states that there are no proposed rules pending. The program calls for a single, exclusive vendor that will file all asbestos documents for a fee, then serve any and all opposing counsel for another fee. Records retrieval will be available at a mirrored site at the court, or online through the exclusive vendor for yet another fee.
On September 1, 2004, the American Bar Association promulgated The Best Practices for Electronic Service of Process wherein it encourages, among other things, “waiver of service of process obtained through the transmission of pleadings by … electronic means …”. See www.abanet.org/scitech/BestPracticesElectronicService.html .
The major forces in favor of e-service appear to be the e-filing technology companies, registered agent companies, the plaintiff's bar and the American Bar Association. The first area for e-service to begin to be implemented will be in the business environment starting with large corporations and their registered agents. Once e-service is established in the business environment, it will extend to other areas of business and governmental activity where other entities are governed by statute.
What is the possible impact of e-service upon process servers?
What can process servers do to help preserve the process serving industry?