Personal service of process has been the hallmark for initialing litigation for nearly 100 years primarily because it guarantees actual notice to a defendant of a legal action against him or her.
It is estimated that more than 30% of the U.S. population is now served by courts that either already have or are in the final stages of transitioning to an electronic courthouse. It seems that 30% is just the beginning and the pace at which courts are moving in this directions is quickening. This change has required courts, their constituents and justice partners to rethink how they interact with the courts and how to do business more efficiently. The court constituents now enjoy electronic filing, electronic service between represented parties, electronic alerts/case events, electronic docket sheets and case management tools, all of which have arguably forever changed the way one interacts with a digital court.
The Process Server
The type of change described above cannot be said for the process serving industry. It has been slow and even reluctant to adapt let alone embrace the digital revolution. Electronic service of case initiating documents is currently the exception.
Electronic Service of Process
As mentioned above the service of process by electronic means is the exception. That exception being instances where a party is able to demonstrate to the court that they have exhausted all efforts to affect service by traditional means and a judge prescribes a manner of service that is otherwise reasonably calculated to provide actual notice.
To learn more about how this process has worked with real cases and to see if it really was that simple, we inquired about service by Facebook with the team at Statewide Process Servers out of West Jordan, Utah, who affirmed that: “...We have had it happen 3-4 times in the last few months. They are divorce/custody cases in which they either do not have an address for the respondent or we are unable to serve the respondent at the addresses they have. Our client will file a motion for alternative service with the court in which they ask to serve the person through their confirmed Facebook page. Once the Judge signs the order granting it they send it to us. I then create image files of the documents and send them to the person through Facebook messaging. I take a screenshot of each image being sent through the Facebook messaging app and include them with an Affidavit of Service indicating that I served them via Facebook Messaging per the judge's order to do so.”
The Continuing Relevance of Process Service
In favor of the electronic service of process still being the exception, the author of “The Continuing Relevance of Personal Service of Process” argues that the electronic service of process schema still falls far short of Due Process demands of “notice reasonably calculated under all the circumstances, to apprise interested parties of the pendency of the action…” Specifically, the anonymous nature, the security vulnerabilities, access issues and inadequate document retention requirements--inherent in current technology--fails to meaningfully address or meet minimum due process standards as set forth in the Equal Protection Clause of the 14th Amendment to the United States Constitution.
The author further argues that for the reasons set forth above, while electronic service of process may hold promise for the future, and until adequate technological measures are engineered that (1) satisfy constitutional Due Process requirements for the parties in a manner substantially identical to those provided by physical service of process, (2) more closely approximate the reliability of physical service of process and maintain a presumption of validity generally free from wanton and frivolous challenge, and (3) ensure that the security profiles, retention and validation capabilities of any such proposed system are engineered with true longevity in mind, personal service of process remains the most effective, reliable, and trustworthy method for providing notice of a pending lawsuit and an opportunity to be heard.
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