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You’ve Been Served

By Robert V. Potter, Jr. | Categories: Articles, LitigationPrint PDF February 2014

Robert V. Potter and Caitlein J. Jammo

When people think about being served a lawsuit, they think of a process server hunting them down, handing them papers, and stating “you’ve been served.”  Recent courts chip away at this method and allow service via email or web services.

In Rio Properties, Inc. v. Rio International Interlink, the U.S. Ninth Circuit Court of Appeal became the first federal appellate court to approve personal service via email.  There, the plaintiff had only electronic contact information for the defendants, and electronic service was the only reasonable option for service.  The court upheld the use of email service but limited its ruling to the particular circumstances and required courts to balance the limitations of email service against its benefits in any particular case.

The court articulated a two part test for electronic service.  First, the service must be reasonably calculated to inform the individual of the lawsuit—this is the national constitutional standard for service of process.  Second, courts must consider whether the advantages of electronic service outweigh the limitations of electronic service in any given circumstance.  Such considerations include whether the recipient of an attachment can open it, whether the recipient can read the attachment, and whether the intended recipient actually received the attachments.

While the Ninth Circuit was the first federal appellate court to analyze service by email, other courts—although certainly not all jurisdictions—have addressed and allowed electronic service in varying ways to varying degrees.  For instance, a Texas federal court in RPost Holdings, Inc. v. Kagan approved email service of a summons, articulating a more stringent standard.  In RPost, the defendant evaded service in Israel.  However, a web service delivered the lawsuit to him via email, and the defendant acknowledged receipt. The court accepted this service because (1) there was proof of receipt (regardless of whether it was read); (2) there was proof the required documents were attached; and (3) the proof was admissible.  Had the court not accepted service via email, the plaintiff in RPost would likely have been unable to serve the defendant.

There certainly are many challenges to electronic service of process—particularly by email. Email filters can classify service documents as spam. Email services can deny delivery of lengthy documents.   Furthermore, courts generally require some sort of confirmation or verification of receipt, but email programs generally will only provide receipt or delivery confirmation when the recipient actively sends or allows confirmation.  Companies that provide these services can address some of these concerns, but they are not without a basis for challenge—for instance the person opening the email may not be the person being sued.

Bottom line—if you receive service of a lawsuit via email or other electronic means—Don’t delete.  Email your lawyer.

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