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..."

Comments

Yucky

[68030]

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?

Registerred Email

[ksw2]

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.

Read carefully - "hide-and-seek" comment

[Seth Finkelstein]

"When faced with an international e-business scofflaw playing hide-and-seek with the federal court, e-mail may be the only means of effecting service of process," the court said. "We acknowledge that we tread upon untrodden ground."

I think the court is NOT saying that it will allow service by e-mail as a routine matter. But in cases where the party is trying to claim to be both available (by e-mail) and NOT available (physically), the court will allow the party's obvious prefered method of being reached :-)

Sig: What Happened To The Censorware Project (censorware.org)

What format?

[treat]

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?

Not a Surprise - Read the Rules

[davidebsmith]

This is not a surprise if you actually read the Federal Rules of Civil Procedure. FRCP 4 (f) says (in relevant part) (italics added):

Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed ... may be effected in a place not within any judicial district of the United States:

(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.

You Don't Have to Read a Subpoena to be Served

[MoNickels]

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.