Standards and Best Practices Committee Report

I would like to bring to the board’s attention to something that I feel was not discussed nor fully understood at the time that the board amended the NAPPS Best Practices for Service of Process.

Although it was intended as a counter balance to the ABA Best Practices, its failure to distinguish Primary from Secondary Service leaves NAPPS in a position of endorsing ABA Standard 1.65 that advocates a policy for converting all court files to electronic files, gives 24/7 access for filing and retrieval, and eliminates the need for personally serving opposing counsel. It further sets the stage for expanding electronic service to Rule 4 services, where the discussion is currently centered.

The Underlying Mandate Affecting the ABA Best Practices for Electronic Service of Process

The ABA Best Practices for Electronic Service of Process was intended to “be fashioned consistent with ABA Standard 1.65, Standards Relating to Court Organization”, approved by the House of Delegates on February 9, 2004. A copy of the full text of Standard 1.65 is available as a separate handout, or may be viewed at http://www.abanet.org/jd/pdf/standard_1_65.pdf.

Understanding the significance of this Standard and its underlying impact the ABA Best Practices for Electronic Service of Process brings them into sharper and more alarming focus. The 1.65 Standard recognizes and urges a clear change in the way court records should be maintained. The Preface states that “the promulgation of this Standard marks the transition of electronic filing from and experimental process to an operational reality for America’s state and federal courts.”

Significantly, Standard 1.65(a) urges the recognition of the electronic document as the official court record, and any paper record, if maintained, should be considered a copy of the official record. This sea change in status will be a key component in significantly eliminating court filings, and record retrieval assignments that messengers, process servers and private investigators regularly perform.

Standard 1.65(a)(x) favors free electronic filing processes built and maintained by the court, unless the public resources are not available. Then the private sector may participate and authorizes courts to enter into fee-supported contracts. This policy all but insures that the court will not fund or build it.

Standard 1.65(b)(1) urges that because the electronic filing systems provide the court with the capacity to automatically serve all parties participating”…[,] “there is no reason to continue to require parties or their counsel to serve those pleadings by mail, or even by email.” Note that there is no mention of personal service. This would further diminish a process server’s participation for service, especially when the definition of when e-service is complete is indistinguishable from a personal service.

Standard 1.65(b)(iv) urges access to the courts 24/ hours per day, 365 days per year. Although they recognize the court’s home rule right to determine when a document is considered “filed”, the standard sees “no reason to restrict electronic filing to the hours during which the clerk’s office is open for business.”

Standard 1.65(c) recognizes that the electronic filing process development will be slow in some courts, and in those courts that do not mandate e-filing a judge should have the authority to designate a particular case as a mandatory e-filing case. The Standard advocate that courts not maintain “split” files with paper and electronic filings, and directs that the courts scan all paper filed documents. This will be a disincentive for courts to not institute e-filing.

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.

The document retrieval component will be further eliminated while competing e-filing companies host the documents that are filed through their sites. Access may be restricted to just the litigants. If allowed, retrieving copies electronically would be charged to an account or a credit card. Lexis current 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.

In the discussion of ABA’s Best Practices for Electronic Service of Process that was started in 2004 and continues to this date, our emphasis has never focused on Rule 5 opposition counsel services. The presumption was made in the 1.65 Standard, and the September ABA’s Best Practices for Electronic Service of Process memorialized it.

I feel NAPPS needs to address Rule 5 services to clearly reflect our position on secondary service. Otherwise, without addressing it, we as an association are endorsing the policy set forth in Standard 1.65.

The ABA committee has focused on Rule 4 services, intending to reach consensus to change the wording of the Best Practices, and in its last meeting discussed the distinctions between waiver of service, acknowledgement and consent as it relates to service of a summons of original process on a defendant.

The NAPPS Best Practices for Service of Process mentions neither electronic service nor service on opposition counsel. I think those are important omissions that need to be corrected. Doing so will further distinguishes it from the both the ABA’s Standard 1.65 and Best Practices.

Primary service laws 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. Not addressing it and “going along” isn’t doing us any favors.

I feel that by not taking an affirmative position on Rule 5 services NAPPS is acquiescing to the ABA’s Standards for e-filing and e-service to the detriment of the process serving industry. We are 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.

Electronic service is already splashing over to laws involving Rule 4 services, as we saw in South Carolina. We also saw service laws change in North Carolina. Lexis inked a deal last month with Delaware that will sweep all courts into e-filing in a few years. Service on Delaware corporations will likely be next. California has a law that permits service outside the state permissible as long as it comports with the laws of the state where service is effected. That’s how it’ll affect me.

It affects filings, access to the courts, opposition counsel services, record retrievals, and civil procedure. In California, only a litigant or his or her attorney can file a document electronically. Process servers, messengers, paralegals, and friends of pro pers cannot. Even “The Solution” with Lawdex won’t allow it.

My recommendation it that the Board reconsider this and further amend our Best Practices before the next meeting of the ABA as follows:

1. … ~~All of the following~~ Best Practices 2 through 6 refer to Primary service of process.

7. When Secondary service is effected on an opposing party for an act to be done, personal service on the party or his or her counsel is complete upon delivery. If secondary service is made by mail, electronically, or by fax, additional days should be added extending the time service is complete for the act to be done.

The ABA Best Practices for Service of Process cite the Hollow v. Hollow case, without a citation that cherry picks a phrase out of context from the Mullane v. Central Hanover Trust US Supreme Court decision. This reference is intended to justify electronic service of lawsuits “be fashioned consistent with ABA Standard 1.65…”.

Hollow v. Hollow, 747 N.Y.S.2d 704 (Sup Ct. Oswego County 2002) validated a service of a divorce action by e-mail on her husband hiding in Saudi Arabia. The citation is "To be sure, the Constitution does not require any particular means of service of process, only that the method selected be reasonably calculated to provide notice and an opportunity to respond", and uses the citation to Mullane as a precedent.

The Hollow case authorized service based upon exigent circumstances for the case, i.e., the defendant was evading process, and fled the jurisdiction of the court. The court fashioned an order authorizing service in the only manner reasonable under the circumstances, using an e-mail address the husband used to communicate with his children.

Mullane v. Central Hanover Tr. Co., 39 U.S. 306, 313 states "A construction of the Due Process Clause which [339 U.S. 306, 314] would place impossible or impractical obstacles in the way could not be justified.”

Mullane dealt with the issue of service by publication to defendant trustees. The court ruled on a case whereby the defendant trustees, including trustees whose out of state addresses were known, were served by publication in a local New York newspaper. The Mullane court reasoned that personal service should not be required in every instance, especially for those whose addresses are unknown.

The court further recognized “[a]n 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.” Milliken v. Meyer, 311 U.S. 457

The court further stated: “But when notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, compare Hess v. Pawloski, 274 U.S. 352 , with Wuchter v. Pizzutti, 276 U.S. 13 , or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes.” (emphasis added)

Therefore, alluding to Hollow and Mullane in the ABA’s Best Practices for Electronic Service of Process are misleading. The court did not give any method of service, such as e-service, a presumption of adequacy of notice to a defendant. The Mullane decision said that the constitutional due process in a manner of service should not place unnecessary obstacles to accomplish it. An alternative ordered manner of service is appropriate, as an exception “where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes.”

Therefore, electronic service should not be encouraged but should be the exception to other more customary manners of service.

Furthermore, the ABA’s Best Practices are written ostensibly to comport with ABA Standard 1.65, relating to e-filing and Rule 5 services. The focus of the latest discussion is clearing devoted to Rule 4, and the concept of waiver, acknowledgement and consent are being blended into this Best Practices. Blending them weakens the Rule 4 procedural threshold requirements. That is where we should be making our stand.

This is another reason why the NAPPS Best Practices for Service of Process needs to distinguish primary and secondary service. It would distinguish them as two types of services, giving notice in two different contexts that should not equated. They are not the same. The due process arguments are not the same.