In the annual end-of-summer announcement of amendments to the New Jersey Court Rules, a change to R 1:9-3 will affect New Jersey process service.
The rule change allows subpoenas seeking the production of documents to be served through mail rather than the previously required personal service.
The new rule looks as follows with the underline portion being the addition:
A subpoena may be served by any person 18 or more years of age. Service of a subpoena shall be made by delivering a copy thereof to the person named together with tender of the fee allowed by law, except that if the person is a witness in a criminal action for the State or an indigent defendant, the fee shall be paid before leaving the court at the conclusion of the trial by the sheriff or, in the municipal court, by the clerk thereof. A subpoena which seeks only the production of documents or records may be served by registered, certified or ordinary mail and if served in that manner, shall be enforceable only upon receipt of a signed acknowledgment and waiver of personal service.
While attorneys have been sending these types of subpoenas through the mail for years, the rule changes provide the ability for attorneys to make the subpoena enforceable. Previously the subpoena was mailed in the hope the individual or company would simply comply with the request. If they didn’t respond, the attorney could then send out a process server.
It doesn’t mean attorneys can expect to enforce a subpoena for documents simply by mailing it however. The rule change only allows the subpoena to be enforceable is there is a receipt of a signed acknowledgement and a waiver of person service. To sign the documents and waive personal service is all up to the recipient. A subject who is evading or who just isn’t cooperative means that the subpoena will have the same enforceability it did prior to the rule change – none.
What does this mean for New Jersey process servers?
In order to continue to be the go-to option for attorneys, we must continue to be efficient. Serving a subpoena personally automatically makes it enforceable and gives the subject little room to attempt to claim improper service. Mailing however, opens up a set of issues over the validity of the service and ultimately the overall need to comply with the request for production.
When there is a matter where the production of documents is key to a case or is needed on a time-sensitive basis, a process server should always be the immediate choice. You wouldn’t find out if an individual was going to comply or not with a mailed subpoena until a week or two after receipt of it. In some cases lost time can greatly impact the final ruling.
Because the additional wording was included requiring the signed acknowledgment and waiver, New Jersey process servers won’t be severely impacted by the change. It is important however to maintain the importance of a trusted third party to ensure the receipt of such documents in order to protect due process rights, particularly when the subject hasn’t acknowledged acceptance of service by mail as the initial method of service.