September 3, 2014

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September 02, 2014

The Continuing Relevance of Personal Service of Process

Introduction

Personal service of process has been the hallmark for initialing litigation for nearly 100 years, primarily because it guarantees actual notice to a defendant of a legal action against him or her. It remains a touchstone, and the “ideal circumstance under which to commence legal proceedings”1 against a person. In today’s increasingly digitized world, however, most documents and information are generated electronically, meaning that thefirst evidence of source or origination documentation is electronically storedinformation.2 A natural consequence of this migration to digital information is that a majority of the potential evidence used in current and to be used in future litigation willbe computer generated.3 From a litigation perspective, this migration provides many advantages to the bench, the bar, and the public by way of reduction in resourcing of paper generation and storage. In order to avail themselves of these advantages, many court systems (both federal and state) have implemented electronic case filing systems where post-initial service of process pleadings are required to be filed in electronic format. Electronic court filing systems, in general, expressly prohibit electronic service of process (summons and complaint). This is the brave new world of computer generated information, part and parcel of everyday litigation life. In light of these developments, many proposals, currently and during the past decade, are being considered to extend electronic litigation activities to service of process, but these are either limited to consensual schema, or permitted only where also accompanied by more traditional personal or alternative personal service methods.

The author submits that the underlying reason for the continuing and near universal preference for personal service is that while electronic filing offers significant postlitigation commencement benefits, it fails to address issues uniquely inherent to initial service of process: adherence to the constitutionally mandated, jurisdictionally critical due process requirements of notice and opportunity to be heard. While technology advancement will no doubt proceed apace in the coming years, it is highly unlikely that any such advancement, standing alone, will satisfy the constitutional due process requirements in initiating a lawsuit, and accomplished in most matters by the uniquely “personal” aspect of “personal service.” Accordingly, even in light of the increasing pace of technology advances, personal service of process remains “personal” and still the most reliable and efficacious way to both ensure compliance with constitutionally imposed due process requirements of notice to a defendant and the opportunity to be heard.

Background of Service of Process

There is perhaps no set of acts more important in furtherance of commencing an action before a court than the filing of a complaint and the service of process on a defendant. Simply put, without proper service of process a Court has no jurisdiction over a defendant and may not proceed to judgment.4 Further, any such judgment rendered will in all likelihood be deemed void. As discussed below, a critical underlying rationale for the strict requirements relating to service of process is for a court to obtain jurisdiction over the defendant, to give a defendant reasonable notice as to the pendency of a claim, and to provide a meaningful opportunity to raise constitutional issues.

It is long established that personal jurisdiction by a court over the parties is a prerequisite to the adjudication of disputes brought before it.5 In federal courts, a civil action is commenced by filing of a complaint.6 Further, a court ordinarily obtains personal jurisdiction by the service of a summons.7 Without service of process (i.e., a summons generally, and a complaint), a court lacks jurisdiction to proceed. Indeed, albeit subject to waiver, a judgment is void if a court acts without [personal] jurisdiction.

Personal Service of Process – Tradition in the United States

The underlying rationale for personal service of process as a prerequisite to the valid exercise of a judicial tribunal over a defendant finds its source in the Due Process clause of the 14th Amendment. This rationale, most often characterized as “notice and opportunity to be heard.” was discussed by the U.S. Supreme Court in a 1950 decision:

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”

The Court then defines “notice” and “opportunity to be heard” as a requirement that a potential defendant be apprised of the nature of the proceedings against him or her, and that he or she have adequate time to mount objections thereto:

“The notice must be of such nature as reasonably to convey the required information…and it must afford a reasonable time for those interested to make their appearance…”10

It remains undisputed that for more than one hundred years personal service has been the sine qua non for reliability and compliance with the constitutional requirements imposed by the 14th Amendment to the U.S. Constitution and decisional authority.

Physical Service of Process: The Summons and Complaint

Whether effectuated in person or (where permitted by law) by certified or registered mail, the purpose of a service of a summons is to give notice to the party against whom a proceeding is commenced to appear at a certain place and time and to answer a complaint against him. In so doing, such service permits the exercise of personal jurisdiction by a court and assures the defendant of reasonable notice of the action. Indeed, there is a presumption of proper service when the civil rules on service are followed.11

The primary method of service of initial process in a judicial action commenced in federal and state courts is by way of in-person, delivery by a process server authorized to effect service under the rules of the particular jurisdiction. In the federal court system, Fed.R.Civ.P. Rule 4 provides generally the requirements for service upon a natural person as well as public and private entities.

Service of process in civil litigation commenced in a federal court may be made by any person who is a non-party and at least 18 years of age, by a United States Marshall, or by someone “specially appointed” by the court.12 In the vast majority of cases commenced in both federal and state courts, service of process is effectuated by professional process servers (many of whom belong to the National Association of Professional Process Servers (“NAPPS), and who adhere to the Best Practices statement adopted by NAPPS.13 Organized in the mid-1970’s, NAPPS, through its more than 2,000 member firms and 10,000 employees perform an estimated 14 million paper service of process engagements per year.14 Emblematic of the reliability and trustworthiness of personal service of process, it is estimated that only a fraction of a percent of personal service of process events are seriously challenged, and even fewer succeed. These best practices engender the stated professional and ethical objectives of the professional process server. These objectives are described as providing an attestation by the process server, under penalty of perjury, that in turn provides proof (by way of affidavit) that is beyond reproach, and that is sufficiently reliable for a court to determine whether jurisdiction has been acquired over a particular person, entity, or property. In furtherance of these goals, adherence to NAPPS best practices requires that this proof or affidavit of service “must be beyond reproach.”15

Only Exceptional Circumstances Justify Departure from the Personal Service Norm

In the United States, a narrow carve-out to the constitutional due process requirements of notice and opportunity to be heard has long been recognized.16 This exception, however, is granted neither automatically nor easily, but it does provide for alternate service “in the case of persons missing or unknown” and permits the “employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no …constitutional bar to a final decree foreclosing their rights." 17

Authorization for service of process by electronic mail has been permitted by some United States federal and state courts, but such electronic service or process alternative are typically considered only after a determination by the tribunal that a defendant successfully attempted to evade service and where s/he also is determined to be reasonably accessible by alternate methods.18 Many of these decisions permitting service of process by mail or email, however, involve cases with foreign defendants whose location is not reasonably ascertainable.19 In such cases, alternative service of process is governed by Fed.R.Civ.P. Rule 4(f) and applicable treaties such as the Hague Convention. Moreover, even in the case of a domestic defendant, decisions permitting service of process by email do so only as one prong of a multiple-service-method approach. A recent decision from the U.S. District Court for the Southern District of New York is illustrative:

“The Court grants plaintiff's motion for permission to make alternate service under CPLR section 308(5). Plaintiff is ordered to attempt service of process of the summons and complaint by all of the following methods: (1) by sending copies of the summons and complaint by certified mail, return receipt requested to defendant Dennis's last known addresses, both in Brooklyn, New York, and Edison, New Jersey; (2) by publication of the action in a local newspaper in Edison, New Jersey, once each week for four weeks following the entry of this order; and (3) by e-mailing a copy of the summons and complaint to the e-mail address that plaintiff states is used by defendant.”20 

Thus, while electronic service of process has in certain limited circumstances been permitted, such methods are considered only where other more reasonable alternatives have failed, or where potential defendants are deliberately evading service, and are generally permitted only in tandem with other more traditional means of effectuating notice and opportunity to be heard.

Federal and State E-Filing Systems Do Not Permit Electronic Service of Process 

In the United States, the Administrative Office of the U.S. Courts has responded to this migration away from paper based systems by instituting electronic filing programs in nearly every federal trial and appellate tribunal.21 In all federal district courts, the Electronic Case Management/Electronic Case Filing system, supervised by the Office of Court Administration, provides the means for the filing of litigation documents in civil, bankruptcy and maritime litigation.22 Various federal courts of appeal, most notably the U.S. Court of Appeals for the Second Circuit of New York, and the Federal Circuit, have instituted electronic filing programs for matters arising before them (CITE to Federal and Second Circuit).

Minimal State Court Adoption of Electronic Service of Process

A very few state courts have also adopted programs that permit electronic service of process, but even here, such service is permitted only in certain very limited circumstances. Where they exist at all, most electronic service of process programs involving individuals (or “natural persons”) are not involuntary; i.e., they require advance consent, and in effect giving advance notice to a potential defendant. For example, South Carolina permits electronic service of process on corporations and partnerships (but not  individuals), and all registered corporations and partnerships are required to register an email address with the Secretary of State (SCRCP 4(d)(3) 4(d)(8) and 5(b)(1). It should also be noted that a party attempting to utilize electronic service of process in South Carolina under this program cannot just send an email to a potential defendant; it must utilize a “certifying” authority (such as the U.S. Postal Service’s “Electronic Post Mark” or “EPM.”

Other state courts, while embracing electronic filing of pleadings and post-summons email service and in apparent recognition of strict constitutional due process mandates,  have initiated electronic filing programs that typically and expressly exclude service of a summons or subpoena.Nevada’s electronic filing rules are typical: 

Nevada Electronic Filing Rules (Rule 9) provides in pertinent part that:  

“(a) Applicability. Electronic service of documents is limited to those documents permitted to be served by mail, express mail, overnight delivery, or facsimile transmission. A complaint, petition or other document that must be served with a summons, and a summons or a subpoena cannot be served electronically.

(c) Consent to electronic service. Other than service of a summons or subpoena, users who register with the electronic filing system are deemed to consent to receive service electronically. A party may also agree to accept electronic service by filing and serving a notice. The notice must include the electronic notification address(es) at which the party agrees to accept service.”

Other states that offer electronic court filing rules substantially similar to Nevada effectively exclude service of process and subpoenas in their definition of what may be electronically served.23

Non-Judicial Consortium Activity

Most recently, the Whois Subcommittee of the Internet Committee of the International Trademark Association (“INTA”) published its recommendation supporting electronic service of process (in this instance, by email) on a “fictitiously” owned website where traditional service of process methods, including substitute service, would be futile or impossible.24 The INTA subcommittee’s report concludes that “[T]he inability to  identify the source of goods and services advertised and sold at commercial websites owned by fictitious and pseudonymous entities frustrates the trademark owner’s ability to institute legal action to enjoin the infringement and protect consumers from fraud and confusion.”25 Even so, the INTA recognizes and acknowledges the paramount constitutional due process requirements inherent in personal service of process, and  expressly limits its proposal permitting electronic or email service of process to a very circumscribed set of facts:

“…[T]his proposal does not seek to disturb the due process principle embedded in many national laws and constitutional precedent, that where a defendant whose rights will be adjudicated in court can reasonably be located, the plaintiff or the tribunal must take efforts reasonably calculated to achieve actual notice…This is not a recommendation that national laws accommodate e-mail service in the first instance, but only in the case of a “fictitiously owned commercial website”—one that is registered pseudonymously, only if the pseudonymous registration prevents the public from ascertaining its true ownership. If limited in the manner proposed in this recommendation, such provisions should not raise any legitimate objections.”26

“Naturally, such a proposal must live within the due process principle embedded in many national laws and constitutional precedent, that where a defendant whose rights will be adjudicated in court can reasonably be located, the plaintiff or the tribunal must take efforts reasonably calculated to achieve actual notice. Therefore, the proposal may apply only in the case of a “fictitiously owned commercial website.”27

Standalone Technology Offerings Do Not Satisfy Due Process Requirements

Technologists have long attempted to address the problems presented by electronic service of process schema, but even those receiving patent protection expressly recognize the importance of constitutional safeguards of due process notice and opportunity to be heard. A recent patent grant, misleadingly titled “Electronic service of process system and method for carrying out service of court papers” nevertheless relies on non-electronic  means (i.e., process servers) to perform the act of serving process initiating a lawsuit against a defendant. The abstract bears out continuing reliance on personal service of process:

“A system and method for online creation and integration of service of process functions is provided, for use in conjunction with paper or electronic filing of court papers. By logging on to a web page, the user can access a rules and decision matrix database providing the rules and requirements for process service by jurisdiction and type. Such rules can be incorporated into process requests using online tools and document management software. Once entered, the requests are compiled in a database, and a system controller coordinates with affiliated process servers to procure process service in the desired jurisdiction.”28

South Carolina’s Electronic Service of Process Schema

It is, and has been, the author’s continuing opinion that electronic service of process schema now commenced in South Carolina still fails to provide appropriate and sufficient protections for that content, and in turn fails to provide the intended benefits sought to be derived from the migration of a physical based service of process schema to an electronically based service of process schema.

The Uniform Electronic Transactions Act (“UETA”) and the Federal eSign Act (“eSign”) provide much of the groundwork for the migration of paper-based to electronically based  processes.29 The focus of the following analysis relates only to the electronic service of process subpoena), and, in the author’s view, to the concomitant misapplication of the ElectronicPostmark offered by the United States Postal Service in connection therewith.

The Supreme Court of South Carolina, pursuant to South Carolina’s Uniform Electronic Transaction Act, stated its mission in the mid-2000’s to migrate to an electronic court filing system for the cases that come before it. It remains true, even today, that current technological solutions, when considered in connection with the heightened procedural and Due Process requirements attendant to the initial service of process, has the potential to (1) strip away the protections accorded the litigants in a physical service of process schema, (2) undermine the integrity of the Court’s role as a trusted repository, and (3) may actually result in increased litigation activity challenging the efficacy of service of process.

The misperception of what technology can, or does, offer as being capable of doing is not unique to the judiciary’s quest to digitize its processes. However, the stakes for the judiciary and the judicial system participants are much higher than those attendant to the private sector in general; these higher stakes must necessarily raise significant issues relating to reliability, authentication, and due process for the litigant parties who are the ultimate “customers” of the judicial system, for attorneys and litigants who are the consumers of judicial resources, and for the Courts, whose burden it is to manage these processes to promote the orderly administration of justice. Accordingly, the arguments surrounding the efficacy of electronic service of process effectuated using the EPM should be thoroughly examined in light of what the EPM technology offering in this sector can, and more importantly, cannot do. 

Systemic Problems Arising from Electronic Service of Process Using the EPM

What the Electronic Postmark Is

The United States Postal Service Electronic Postmark (“EPM”) is the electronic counterpart of the timestamping clock used by a Court clerk in connection with the filing of pleadings. The difference between the two is that the timestamp of a digital document is software based (or electronic, consisting of binary zeroes and ones) while the inked imprint of a clock’s “stamper” mechanism represents a physical timestamp of a document. A digital timestamp is designed to provide proof that data existed at or before a certain time.30 A digital timestamping service (DTS) issues timestamps that associate a date and time with a digital document in a cryptographically strong way. A digital timestamp can be used at a later date to prove that an electronic document existed at the  time stated on its timestamp. For example, a physicist who has a brilliant idea can write about it with a word processor and have the document timestamped. The timestamp and document together can later prove that the scientist deserves the Nobel Prize, even though an archrival may have been the first to publish.31

On their respective web sites, the USPS and AuthentiDate (the company hosting service for the EPM) define the EPM as “comprised of an electronic time and date seal and a Hash Function which provide security services that verify the authenticity of Electronic Files.32 In recent proceedings before the United States Postal Rate Commission, the Unites States Postal Service describes the EPM service as one that “combines trusted timestamps with content authentication technology.”33 Translated into more simple language, the EPM only associates electronic data content with time. Accordingly, the United States Postal Service Electronic EPM is no more, and no less, than an Internet based service provider that timestamps digital files as defined above.

The Electronic Postmark Is Not Mail, Nor is it An Indicia of Mailing

a. The EPM is not a mail service “Postmark”34

b. The EPM has nothing to do with email.35

c. The USPS EPM is not a “document delivery Service”36

d. “The USPS Electronic Postmark is not a class of mail or type of mail service under 39 U.S.C. §3621”37

e. [The] USPS EPM service functions as neither a type of mail, a mirrormail, nor is it a service ancillary to mail.38 USPS EPM service does not, by itself, provide evidence of the time and date of a document transmission, although a third-party application may use it that way.39

f. Does not prove sending or receipt.40

g. The EPM service is “static” in that it proves only that a document existed at the time it was received by the EPM’s timestamping service.41

The EPM is anonymous by design; the EPM digital timestamping service does not prove who sent or received a document. A digital timestamping service performs one function, and one function only, and that is to authenticate digital data content. The EPM adheres to the RFC 3161, the timestamping standards promulgated by the Internet Engineering Task Force (“IETF”), which standard mandates anonymity in the timestamping process.42  This is done irrespective and by design independently of the identity of the “creator” of that content. Accordingly, standing alone, the EPM service merely timestamps content as of the time a fingerprint of that content is received by AuthentiDate’s remote Internet  server.43 As a result, anyone who can sign on to the USPS EPM can have any document timestamped, forged or otherwise. This flies in the face of the Due Process constitutional mandates articulated by the Supreme Court in the Mullaney case – “…notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”44

Further, The United States Postal Service Electronic Postmark is clearly not a mail service, nor does it “certify” or “register” email. Indeed, it is not, nor does it constitute, either electronic or real mail in any manner. The USPS Electronic Postmark does not provide any indication of the time a sender sent an email, nor can it reflect the time a recipient received an email. Indeed, it offers no electronic mail service of any kind. The EPM service does prove digital data content existed at the time it received content to timestamp. Yet, the EPM and the electronic proof of service, as currently offered purports to satisfy the notice requirements of the Due Process clause as they relate to the service of initial process on a party defendant. For all the reasons stated herein, the Authors respectfully maintain that they do not. The schema as currently designed leaves the current process quite susceptible to sufficiency challenges that are not easily made in the physical world. In light of these inherent shortcomings, and without significant technological enhancements to this process not offered by the USPS or AuthentiDate, the reliance on an EPM as means for effecting electronic service of process only questionably confers jurisdiction on a party, and even more questionably provides any reasonable likelihood of sufficient notice of the action.

EPM Warranty Disclaimers and Reliability

Another significant issue setting personal (i.e., in-person) service of process apart from electronic service of process offerings is one of reliability and trust. While electronic service of process technology vendors will boast of 99.9 percent “uptime” or availability, a look at the fine print will tell a different story. A recent warranty disclaimer offered by the U.S. Postal Service EPM makes no guarantee of service availability or reliability, and provides in pertinent part that: 

“THE EPM IS PROVIDED ON AN "AS IS" BASIS and limits liability.”

The USPS EPM disclaimer also provides in pertinent part that: 

“IN NO EVENT SHALL USPS OR ITS LICENSORS BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, OR FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, DELAYS, LOSS OF DATA, LOST PROFITS, LOSS OF GOODWILL, INTERRUPTION OF SERVICE OR LOSS OF BUSINESS OR ANTICIPATORY PROFITS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING. THE SOLE REMEDY AVAILABLE TO YOU SHOULD THE EPM SERVICE NOT BE ACCESSABLE DUE TO A TEMPORARY EPM SERVER FAILURE, OUTAGE, OR UNAVAILABILITY, THEN USPS WILL CONSIDER ISSUING A CREDIT EQUIVELENT [sic] TO THE AMOUNT CHARGED FOR THE EPM TRANSACTION WHICH WAS UNABLE TO BE COMPLETED.” 

While no service provider, electronic or physical, can guarantee uptime on a 24 hour a day, seven days a week basis, the disclaimer provided above effectively shields both the USPS or any of its EPM licensee from any injury to any party (including the Court, efiling attorneys, and litigants) as a result of malfunctions, damages, delay, loss of data interruption of service, and a seemingly unending parade of horribles.45 Consider the hapless litigant whose filing is under a deadline, and whose filing is further jurisdictional, or otherwise mandates heightened time and filing sensitivity. If the United States Postal Service Electronic Post Mark service is unable to perform its postmarking service, for whatever reason, the risk of loss and injury falls squarely upon the shoulders of the litigants, the litigant’s attorneys relying on electronic filing processes, and may ultimately endanger to the integrity of the Court records keeping system and processes. From a commercial perspective, a liability disclaimer such as this might be appropriate; however, the duty owed by the Court as a trusted repository to maintain both the process as well as the data integrity of the electronic documents generated and filed with it suggests rather strongly that the commitment levels of the Court, in establishing such a long-lived trusted repository, and the EPM, in its efforts to limit liability, are in serious misalignment.

Indeed, updates to the USPS EPM program announced in 2006 permit independententities to merely “self-certify” the trustworthiness and reliability of their technology, further diluting the efficacy of the USPS EPM for electronic service of process purposes. The author submits that such “self-certifying” entities cannot meet the exacting “beyond reproach” standards espoused by NAPPS in its best practices statement.

Personal Service of Process - Record Maintenance

Not a few civil actions take years to navigate through to trial, and then through the appellate court system, and then perhaps return to trial on a remand. This issue has been tacitly recognized by other jurisdictions. Records retention is another important but frequently overlooked aspect to effecting service of process. Not surprisingly, the Electronic Case Filing Rules for the United States District Court for the Southern District of New York require that hard copies of all filings relating to proofs of service and declarations which have been made electronically be maintained for five years after the time periods for all appeals expire.46 The retention of the proof of service of process is therefore of critical importance even years after service of process was effected.

Long-term retention is not mandatory with the EPM used in connection with electronic service of process. The EPM as deployed in pilot offered a short seven-year retention period for timestamps (or EPM’s) used to validate digital data content.47 This means, in effect, that evidence of content authenticity is stored in the USPS EPM repository only for seven years “to ensure trusted non-repudiation of content.” The practical effect of this arbitrary limitation means that any litigation, including any appeal(s) or remand(s) thereof, must be completed within seven years of the issuance of the EPM or the content so authenticated by the EPM will be subject to challenge anew. A seven-year retention policy for the validation of such critically important documents as a proof of service of process is therefore woefully inadequate to protect the Due Process rights of potential defendants to a lawsuit. Indeed, for an efiling service of process schema that never originates as paper or hard copy, a seven year EPM retention period may result in a per se civil practice rules violation, with potentially devastating consequences for both a litigant (and litigant’s counsel).

In recognition of this critical need, the NAPPS best practices statement provides that: 

“A separate, permanent record should be maintained by the process server, or by the employer on his or her behalf, and must be available for inspection by the process server, court, or the person requesting service…48

“A written permanent record of the service should be maintained, and made available upon request.”49

Personal Service of Process Remains a Critical Jurisdictional Foundation

The NAPPS best practices statement for professional process servers provides in pertinent part that:

“A proof or affidavit of service must accurately state the date, time, place, and manner of service, and any additional information that would reflect how delivery of process or other legal document was made to a person or entity served. When required, a proof or affidavit of service should also reflect the description or relationship of that person to the person or entity served, and the military status of the person served.”

The incidence of on-line identity theft, data breaches, spoofing, scamming, and computer outages shows alarming increases. Current technology can barely keep up with detection and prevention of these events, much less provide proof “beyond reproach” that service of process was effected in such a manner as to protect the due process rights of a potential defendant. These technological shortcomings underscore the advantages, as well as the reasons underlying the viability of personal service as the preferred method for effecting service of process today, and for the foreseeable future.

The Continuing Relevance of Process Servers in the 21st Century

It is the opinion of the author that the electronic service of process schema still fall far short of Due Process demands of “notice reasonably calculated under all the circumstances, to apprise interested parties of the pendency of the action…” Specifically, the anonymous nature, the security vulnerabilities, access issues and inadequate document retention requirements--inherent in current technology--fails to meaningfully address or meet minimum due process standards as set forth in the Equal Protection Clause of the 14th Amendment to the United States Constitution.

For the reasons set forth above, while electronic service of process may hold promise for the future, and until adequate technological measures are engineered that (1) satisfy constitutional Due Process requirements for the parties in a manner substantially identical to those provided by physical service of process, (2) more closely approximate the reliability of physical service of process and maintain a presumption of validity generally free from wanton and frivolous challenge, and (3) ensure that the security profiles, retention and validation capabilities of any such proposed system are engineered with true longevity in mind,50 personal service of process remains the most effective, reliable, and trustworthy method for providing notice of a pending lawsuit and an opportunity to be heard.

 1 http://www.law.cornell.edu/anncon/html/amdt14dfrag10_user.html (last viewed April 29, 2010)

2 Lyman, Peter and Hal R. Varian, "How Much Information", 2000. Retrieved from http://www.sims.berkeley.edu/how-much-info on [2010-04-26].

3 Teppler, Digital Data as Hearsay, 6 Digital Evidence and Electronic Signature Law Review at p. 8 (2009).

4 “Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied. “[S]ervice of summons is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served.” Omni Capital Intern., Ltd. v. Rudolf Wolff & Co., Ltd. 484 U.S. 97, 104, 108 S.Ct. 404, 409 (U.S.1987)

5 Ibid.

6 Fed.R.Civ.P. Rule 3

7 See Fed.R.Civ.P Rule 4, Omni Capital Intern., Ltd. v. Rudolf Wolff & Co., Ltd. 484 U.S. 97, 104, 108 S.Ct. 404, 409 (U.S.1987)

8 Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 102 S.Ct. 2099 (U.S. 1982)

9 Mullane v. Central Hanover Bank & Trust Co. 339 U.S. 306, 314, 70 S.Ct. 652, 657 (U.S. 1950)

10 Ibid.

11Vitek v. AIG Life Brokerage 2007 WL 682431, 2 (S.D.Ohio) (S.D.Ohio,2007)

12 Fed.R.Civ.P. Rule 4(c)(2),(3).

13 See, National Association of Profesional Process Servers Best Practices, http://www.napps.org/best_practices.asp , last viewed April 26, 2010.

14 Source: National Association of Professional Process Servers

15 Ibid.

16 “Undoubtedly, as contended by plaintiffs in error, the essential element of due process of law is an opportunity to be heard, and a necessary condition of such opportunity is notice...But personal notice is not in all cases necessary…There may be, and necessarily must be, some form of constructive service.”Jacob v. Roberts, 223 U.S. 261, 265, 32 S.Ct. 303, 305 (U.S.1912).

17 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 317 (1950) (permitting service by publication). Accord, Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1016-17 (9th Cir. 2002) (applying the reasoning in Mullane to allow electronic service on "an elusive international defendant,” but only where service was also made by international courier and regular mail).

18 See, e.g., Bank Julius Baer & Co. Ltd. v. Wikileaks, 2008 WL 413737 (N.D.Cal. Feb. 13, 2008) (permitting service by email where plaintiff demonstrated that physical addresses for foreign  defendants could not be effectively located and that such defendants, through their purported agents, refused to accept service; BP Products North America, Inc. v. Dagra, 236 F.R.D. 270 (E.D.Va. 2006) (service by publication on foreign defendant permitted where notice by mail was shown to be impossible).

19 Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007 (9th Cir. 2002); BP Products North America, Inc. v. Dagra 236 F.R.D. 270, 272 (E.D.Va.,2006) (“From the limited case law in the area, it is clear that service by publication to a defendant in a foreign country is an acceptable alternative means under 4(f)(3), so long as diligent attempts have been made to locate the defendant and serve process by traditional means, and the publication is one that likely would reach the defendant.”); Juniper Networks, Inc. v. Bahattab, 2008 WL 250584 (D.D.C. 2008).

20 D.R.I., Inc. v. Dennis 2004 WL 1237511, 1 -2 (S.D.N.Y. 2004); See, also D'Acquisto v. Triffo, 2006 WL 44057 (E.D.Wis. 2006); Hollow v.Hollow, 193 Misc. 2d 691; 747 N.Y.S.2d 704 (Sup.Ct. 2002)

21 See Case Management, Electronic Case Files, http://www.uscourts.gov/cmecf/cmecf_about.html last viewed 2010-04-26.

22 See, e.g., https://ecf.cand.uscourts.gov/cand/index.html (last viewed 2010-04-26)

23 See, e.g., Alabama Administrative Procedures, http://efile.alacourt.gov (last accessed 2010-04-26); Manatee County, Florida E-File Guide, http://www.manateeclerk.org/Portals/0/PDF/Instructions/E-File_Guide.pdf (last accessed 2010-04-26)

24 Report: Substituted Service of Process by Electronic Mail, Achieving Notice on Fictitious Owners of Commercial Websites for Access to Judicial Remedies, International Trademark Association (November 11, 2009)

25 Ibid., at p. p.17

26 Id., at. p.9

27 Id., at p. 3

28 See U.S. Patent No. 7,64,655 (Issue date February 16, 2010) processes.

29 See., e.g., Title 26 Chapter 6 of the Code of South Carolina, Pub. L. No. 106-229, 114 Stat. 464 (2000) (codified at 15 U.S.C. § 7001 et seq.).

30 See Internet X.509 Public Key Infrastructure Time-Stamp Protocol, http://www.ietf.org/rfc/rfc3161.txt?number=3161

31See Verisign Web Site: https://digitalid.verisign.com/client/help/id_intro.htm

32 See USPS EPM Terms of Use https://www.uspsepm.com/crm/terms.adate

33 Complaint on Electronic Postmark, United States Postal Rate Commission, Docket C-2004-2, USPS Answer, ¶¶2,21 (Filed April 26, 2004)

34 Complaint  on Electronic Postmark, United States Postal Rate Commission, Docket C-2004-2, USPS Answer, ¶¶2,5 (Filed April 26, 2004)

35 Complaint on Electronic Postmark, United States Postal Rate Commission, Docket C-2004-2, USPS Answer, ¶¶2,5,17,21,22 (Filed April 26, 2004)

36 Complaint on Electronic Postmark, United States Postal Rate Commission, Docket C-2004-2, USPS Answer, ¶¶2,5 (Filed April 26, 2004)

37 Complaint on Electronic Postmark, United States Postal Rate Commission, Docket C-2004-2, USPS Answer, ¶¶2,5,17,21,22 (Filed April 26, 2004)

38 Complaint on Electronic Postmark, United States Postal Rate Commission, Docket C-2004-2, USPS Answer, ¶¶2,5,17,21,22 (Filed April 26, 2004)

39 Complaint on Electronic Postmark, United States Postal Rate Commission, Docket C-2004-2, USPS Answer, ¶21 (Filed April 26, 2004)

40 Complaint on Electronic Postmark, United States Postal Rate Commission, Docket C-2004-2, USPS Answer, ¶¶2,5,17,21,22 (Filed April 26, 2004)

41 Complaint on Electronic Postmark, United States Postal Rate Commission, Docket C-2004-2, USPS  Answer, ¶¶2,5,17,21,22 (Filed April 26, 2004)

42 “[The time-stamp authority] shall not…include any identification of the requesting entity in the timestamp tokens.” See Internet X.509 Public Key Infrastructure Time-Stamp Protocol. http://www.ietf.org/rfc/rfc3161.txt?number=3161

43 AuthentiDate’s 2004 EPM Whitepaper: states, “The [EPM] service combines trusted time stamps with content authentication technology. This combination proves document authenticity when a result ing EPM is associated with a document or transaction that can later be verified using the EPM repository…and is designed to detect the fraudulent tampering or inadvertent altering of electronic data.”

44 Mullane v. Central Hanover Bank & Trust Co. 339 U.S. 306, 314, 70 S.Ct. 652, 657 (U.S. 1950)

45“Under this new framework, the USPS will license the necessary trademarks and intellectual property to 

46 http://www.nysd.uscourts.gov/ecf/ECF_rules_SDNY_Aug08.pdf , last viewed April 28,2010

47 See AuthentiDate EPM Website Data: http://www.AuthentiDate.com/www/products/uspsepm.htm (2005)

48 http://www.napps.org/best_practices.asp

49 Ibid.

50 It is perhaps reflective of these concerns that the Federal Courts’ Electronic Filing System does not permit electronic service of process for the summons and complaint in Federal Court filings. See, e.g., Southern District of New York, Procedures for Electronic Case Filing Rule 1 (d).

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About this Author

Partner

Mr. Teppler is a partner at Edelson McGuire, LLC, and chairs the firm’s electronic discovery, information governance and risk mitigation practice. Steven advises about risk, liability, and compliance issues unique to electronic data generation. He has written extensively and lectures nationwide on electronic discovery and information governance, and digital evidence practice.  Steven holds six patents and is the founder and CEO of a content authentication provider. He is also Co-Chair of the eDiscovery and Digital Evidence Committee of the American...

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