The issue of electronic service of process is considered by many process servers to be the most significant threat to our industry. In defense of personal service, Attorney Steven W. Teppler of Edelson McGuire recently published an interesting article: “The Continuing Relevance of Personal Service of Process”. Teppler’s article highlights the fundamentals and rights behind service, the shortcomings of electronic service and the reasons why personal service should still be the first choice in regard to service of process.
While this article certainly is significant to lawyers, it is even more so to process servers and it’s nice to see a well thought out piece really taking a look at the reasons why electronic service of process shouldn’t be implemented as the first step in serving process. The article emphasizes the importance of the 14th Amendment and of an individuals’ right to be given notice and to have adequate time to respond. Without such service, the court does not establish their claim and therefore cannot enforce any judgment. Notifying someone through Facebook or Twitter does not necessarily fulfill those requirements if this was the primary method of service.
There are exceptions where alternate service is necessary after various other methods have been attempted. As the Whois Subcommittee of the Internet Committee of the International Trademark Association pointed out, there are situation where there are “fictitiously” owned websites where even substituted service would be nearly impossible. In this case there is practically no other way to execute service.
Teppler also points out the problem associated with the currently implemented requirement that all electronic service of process utilize a certifying authority. The US Postal Service’s Electronic Post Mark (EPM) is an example of such but this authority does not prove that an email was sent or received – its sole purpose is to confirm the time of data creation. With this could be useful in terms of patents or trademarks, it does not reflect whether or not due process actually occurred. So then how does one prove that an individual was served at a certain time?
The area of electronic service of process is relatively new territory for process servers but as technology continues to advance we will see even more cases where this issue arises. Being able to take a stand on these issues is going to begin to be even more important – again, another important reason to be a part of your state association!