eService Due Diligence
Posted June 19, 2019 in Process Service
By Samantha Cole
Service of process is an important part of the legal system because it makes all relevant parties aware of legal proceedings. While the best way to serve will always involve face-to-face interaction, the growing prevalence of social media makes digital service more practical. Whether it’s email, any form of social media, or texting, here’s everything a process server might need to know about eService and whether it might be a viable option for your case.
A Brief History of eService
While some courts are still hesitant to allow eService, it has successfully been used in numerous cases in the recent past. The first case involving service via email was Broadfoot v. Diaz in which a bankruptcy trustee could not effectuate service because the defendant, a former officer of the debtor corporation, often traveled throughout Europe. After proving the email address was reliable, the Bankruptcy Court decided that service of process by email is authorized by Federal Rule of Civil Procedure 4(f)(3) and qualifies as due process. This case was closely followed by Rio Properties, Inc. v. Rio International Interlink in which the Ninth Circuit Court of Appeals upheld the use of email service on an entity in Costa Rica, heralding the more accepted use of email to serve foreign defendants. Social media, however, wasn’t used as a viable means of service until the 2011 case Mpafe v. Mpafe in which a Minnesota family court authorized the use of “Facebook, Myspace or any other social networking site” in order to serve an elusive defendant. The use of text messages as service came even later in a 2015 case. Learn more about the history of eService and the cases that have made electronic service viable in this list of electronic service of process.
How to eServe the Right Way
Courts are generally still hesitant to allow digital means of service because of the challenges involved, but with server due diligence it could still be an effective option. Here are the things to keep in mind when considering eService for your case.
Check in with your Clients
Everyone involved in the case must be on board with using electronic service of process. This, most importantly, includes the judge but you also need to get your clients’ consent. Not only is their permission required but their cooperation is also vital in obtaining the information you need to make the serve valid. They will most likely be the source from which you get relevant email addresses, phone numbers, and profiles and have likely used these methods to communicate with the defendant previously.
Only Under Court Direction
Before sending anything using social media, text, or email, make sure you have the direct and clear permission from the judge presiding over the case. Without this, your serve will likely be considered invalid.
A Last Resort
In order to gain the trust of the court, you must prove that all conventional means of service were tried and failed. This means you tried with the best of your ability to find a current physical address for personal or mailed service and have reasonably eliminated publication as a viable option. Without substantial effort put into these more typical methods, the court will not consider electronic methods. Social media will also rarely be the only method of service and often used in addition to these more traditional methods.
Prove Method and Identity
In addition to eliminating other methods of service, you must prove that the defendant actually uses the email or social media account and that the accounts actually belong to them. This can be done by showing previous interactions between the defendant and your client via the methods you intend to use, such as an email account or text messages. You can also show a person uses a social media account by showing their recent posts and “likes.” Ultimately, you need to prove to the court that the defendant is familiar with the means of service and that they use it on a regular basis.
Proof of Service
If you are able to get electronic service approved, you must then prove that the service was actually received by the defendant. You can expect the same level of due diligence as you would with a more traditional method of service, such as personal or mailing, or maybe even more as many courts still have reservations regarding eService. Remember that a screenshot is often not sufficient. Securely capture and store HTML and metadata for each attempt. Thoroughness may also include attempting service via all channels that are available to you, meaning communicating through multiple social media profiles as well as email. Successful eService also includes documentation that a message was received and opened. Certain online services can aid in this by tracking the receipt and opening of emails.
Though there is a lot of potential that goes along with using eService, there are also a variety of problematic aspects to keep in mind when taking this route.
With social media, there’s always the possibility that the profile is fraudulent or inaccurate. Facebook doesn’t permit fake profiles but they also don’t pre-screen their profiles. There also might be multiple profiles with the same name. These hurdles require in-depth research to ensure the profile is accurate and actually belongs to the defendant.
Email also has a couple of common issues. Defendants often claim that the service email went straight to their spam folder or they neglected to open it because they didn’t recognize the sender. This claim is usually easily addressed if the plaintiff maintained email communication with the defendant previously. And while the defendant could reasonably still delete the email, deleting the email would actually validate that they saw and acted on the summons, validating the serve.
In a world where you’re significantly more likely to get a text or a like on your post than a phone call, service of process by electronic means makes more and more sense. While courts are still wary of using it in every case, it may be the solution you need to serve a flighty defendant. Just make sure you do your due diligence to make sure your eService is valid in a court of law.