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Are You Being Served? Don't Open That Email!
An unnamed reader writes: "A federal appeals court has ruled that legal documents can be served by email.
Since the party had no physical address, the court ruled that email was a viable option.
So, before you open that next email, you might want to consider if it's something you might want to avoid! And it wouldn't be spam..."
I use hotmail for a reason :)
errr....umm...*whooosh* *whoosh* Is this thing on ?
You've been served.
Guess it's time to get an email address on a non-US server. They can't send a US court jury duty
request to a non-us email address, can they?
Until you can confirm the receipt beyond a reasonable doubt, I don't think this will become a widespread practice. How hard is it to forge a bounced message?
Anyway, undoubtedly if you do have a physical address, it will be used instead. The case mentioned in the article seems to be an isolated one.
Sig: What Happened To The Censorware Project (censorware.org)
Now hundreds of people are hiring lawyers and showing up in court on dates they were never expected for summons that were never issues.
There are reasons why papers must be served in person; so everyone on both sides knows it happened for real. Summons by regular mail is bad enough.
There is nothing so silly as other peoples traditions, and nothing so sacred as our own.
An important aspect that has been as of yet unmentioned, is what format were these documents sent in? If they were sent in a proprietary format, is the recipient required by law to purchase software to decode the document?
Well, nice try. I'd bet (pun intended) that the information from whois, before Harrah's took the domains, was probably more obtuse.
Harrah's operates the Rio; they probably took over the domains as part of the story.
My first thought was the same as yours, but the information seems to reflect the results of Harrah's legal actions.
Of course, even if the whois information isn't accurate, the money going to the sites had to go somewhere. Follow the money.
Some people have a way with words, and some people, um, thingy.
Not everything for which you may be summoned to court is a bad thing. My brother serves papers for various lawyers in NY, and every so often while visiting, I would go with him if he had a tricky paper to serve. On several occasions, the papers were "come to court and collect your inheiritance" type papers, where the people actually welcomed him in and offered food+drink.
Were the legal system to start contemplating e-Service of paperwork, these "warmfuzzy" services could be first served electronically, as their degree of repudiation ("I never got served") would be extremely low.
Enlarge your subpoenas - GUARANTEED!
It's a bad/stupid thing (depending on your perspective) because this ruling is effective with TODAY'S technology. That means that there won't necessarily be any evidence that the notice was really served, that it was secure, etc. Do you really trust POP/IMAP/HTTP enough for this purpose? Do you really? This probably has implications for contracts too. I would be very careful about this, or you'll get what you wish for (example below).
You: "Your honor, I am not bound by this contract because this email did not come from me. It was forged."
The judge: "Prove it."
You: [Blank stare.]
It would be pretty easy to drum up a whole stack of lawsuits based on forged mail. Hell, you could fake contracts of all sorts and pretend people owe you something in the hopes that they'll pay you something just to go away and not have to show up in court.
I doubt any self-respecting law firm is going to use this as their primary means of serving papers anyway, despite the ruling.
Also, think of this: if the party in question is so elusive that you are totally unable to serve them in person, then what real means of enforcement do you have in dragging them to court? So maybe you can get their site shut down? What if they're not the hosting company? What redress really occurred then?
No sir, I don't like it. Between this and e-voting, I smell real trouble.
Please mod this post only if you think others should/n't read this. I have enough ego^H^H^Hkarma. Thanks!
This is not a surprise if you actually read the Federal Rules of Civil Procedure. FRCP 4 (f) says (in relevant part) (italics added):
... may be effected in a place not within any judicial district of the United States:
...
Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed
(1) by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or
(2) if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice:
(A) in the manner prescribed by the law of the foreign country for service in that country
...
(C) unless prohibited by the law of the foreign country, by
(i) delivery to the individual personally of a copy of the summons and the complaint; or
(ii) any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or
(3) by other means not prohibited by international agreement as may be directed by the court.
Plus, under FRCP 4 (d) (2) (b) the defendant has a duty to avoid costs of service if a waiver of service is requested "through first-class mail or other relaible means."
The touchstone of whether service of process comports with due process is whether it is a method reasonably calculated to give notice under the circumstances. Our office regularly files cases requesting emergency authorization to demolish buildings that are in an imminently dangerous and hazardous condition and we provide notice by fax or by leaving messages on voice mail or by posting a notice on the door of the building. Under the circumstances that someone may be killed by a falling building if something is not done quickly, that is always sufficient notice under the circumstances.
In this case, the defendants were in a foreign country, at a concealed address, and the only known method of providing notice was via e-mail. Under many state laws, service by publication (those little ads in the back of the newspaper) is effective and constitutional. Certainly service via e-mail to the address provided by the defendant is more reasonably calculated to give notice than publication in the Law Bulletin would be.
This is yet another case of somebody seeing a high-tech buzzword and thinking it's hot news when it's really something that people have been doing for years.
"It looks like you are frantically trying to erase the record of your having been electronically served papers. Would you like help with that?"
visit the hwky website for a lyrical genius infusion.
They don't have to find you. If it appears that you are unavailable, intentionally or otherwise, and the plaintiff has made a serious effort to contact/locate you, you can be served by publication. Which means that if the court thinks you are in Los Angeles, CA, then all they have to do is put a small add in the classifieds (public notices) in a major LA paper, and then you've been served. Regardless of whether you've ever been in California or not. And yes you will by default if you don't show up for your court date.
The new AOL email notification!
"You have subpoena"
I am not a lawyer, but my father delivers subpoenas for a living to men who have not paid child support. I asked him in the past about people refusing to accept subpoenas when he hands them to them. He explained that telling the party of the subpoena is sufficient for the subpoena to be served, and all that is required is that he a) notify them of the subpoena, and b) make it available to them. Refusing to accept the subpoena, not reading it, dropping it, ripping it up, or even claiming you aren't the person the subpoena is supposed to go to, do *nothing* to cancel the fact that the process server has, in fact, found you and given you sufficient notice of the legal document. In fact, a process server can simply used the scattershot method: deliver subpoenas to your home, your work, your gym, your parents' home, your girlfriend's house, your past addresses, everywhere, and in most cases it is sufficient to shove it in the mail slot, leave it in the mailbox, put it inside the screen door, hand it to another family member or household resident, put it under a windshield wiper, etc. Such a subpoena is considered served. You have been given sufficient notice. The court would prefer you pay attention to that notice, but it's your loss if you don't. So claiming you didn't get or didn't read an email message which you did indeed receive is likely an insufficient argument in the eyes of the court, particularly if there's strong evidence that you do, in fact, use the email address in question.
I should add that contrary to what you might think, most of the people who are served subpoenas are apologetic and civil, even a little bashful about having to have someone official notify them of a legal matter related to their own mistakes.
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