06 Mar 2012

Can you Serve Court Papers by Email?

As we are in the email proof business, we are often asked, “Can you serve court notices and summons using email?” The quick answer is yes, but it depends on many factors including acceptance and approval from local court rules and applicable statutes and of course the specific presiding judge. An instance I can share where serving a summons via email was approved is one in which RPost is involved and we used our own Registered Email technology to serve notice in the court proceeding.

A recent blog, referenced our specific instance. In the blog, “Case of the Day: RPost Holdings, Inc. v. Kagan,” author Ted Folkman discusses the popular topic of using email to serve notice on parties in legal proceedings. He references The Hague Service Convention and other considerations. Since we (RPost) are a party in this case, I thought I would provide some additional insight into what we did to satisfy this request, with enough detail that anyone with similar issues might opt to follow our playbook here.

Folkman writes:

“The case of the day, RPost Holdings, Inc. v. Kagan (E.D. Tex. 2012), is yet another example of why you shouldn’t let your lawyer communicate with the plaintiff if you intend to duck service. RPost sued Dmitry Kagan for trademark and patent infringement on account of pointofmail.com, a website it alleged Kagan owned. RPost attempted to make service on Kagan in Israel via the central authority mechanism under The Hague Service Convention, but the central authority responded that Kagan had moved to an unknown address. RPost managed to make email contact with Kagan: it received a response to its email from Jonathan Agmon, who stated that he represented Kagan “with regard to responding to your letter.” Agmon refused to accept the summons and complaint on Kagan’s behalf or to provide a valid address where Kagan could be served under the Convention. RPost then asked for leave to serve the complaint by email on Kagan and Agmon.

The court agreed. First, the Convention does not apply, because Kagan’s address is unknown, and RPost acted with reasonable diligence. Second, the service requested complied with due process, because it was clear, from the fact that Agmon had responded to the email to Kagan, that the email had in fact reached Kagan. In a neat twist, RPost said it had used its own “Registered E-mail technology” to verify that Kagan had received the message.

The moral of the story: if you intend to duck service, run silent and run deep. Once your lawyer surfaces, the court will likely permit service on the lawyer, particularly if he is intransigent and refuses to provide an address for you or to accept service on your behalf.”

Now, if one is to review the Memorandum Opinion and Order from the Court, you will see that the Court did permit the use of electronic mail for service, but noted, “RPost is directed to file a notice with the Court, along with all necessary and appropriate exhibits, demonstrating compliance with each of the foregoing methods of service.” Since the Court required us to be able to offer evidence of compliance with the Court Order – demonstrate the ability to prove delivery of our email notices — we of course turned to our own RPost Registered Email technology, which we believe, is the only simple way to accomplish certified proof of email delivery.  As such, our lawyers submitted to the Court the resulting RPost Registered Receipt email record, the record that RPost’s Registered Email service provides, along with supporting third-party reference materials.

Here are the reference materials we used, useful to anyone needing to serve court notices and summons.

Consider our requirements first, as dictated by the Court: (1) prove email delivery (regardless of opening and reading), (2) prove delivery of the attached documents (content received), and (3) provide to the Court proof that these requirements were satisfied; delivered to the court in paper exhibits (presumably maintaining the ability to authenticate the record to withstand any potential challenge as to authentication of delivery, content, and times, and court-admissibility at any time in the future if needed).

(1)    Proof of delivery, regardless of opening and reading.

Stan Gibson, Partner at Jeffer Mangels Butler & Mitchell LLP provides some guidance as to what this means, in his paper entitled, “CONVERTING LEGAL & CONTRACT NOTICES FROM PAPER TO ELECTRONIC DELIVERY, a Corporate Counsel Guide.” In this paper, he writes, “Importantly, what constitutes a ‘legally received electronic message’ is defined within the Uniform Electronic Transaction Act (UETA). Assuming UETA applies to the transaction (note, although we are referencing United States law, this principle generally holds internationally as this is based upon a United Nations model law that has been used as the foundation for most electronic transaction laws worldwide), an email is deemed “received” under UETA pursuant to Sections 15(b) and (e), which state the following: 15 (b) Unless otherwise agreed between a sender and the recipient, an electronic record is received when: (1) it enters an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record; and (2) it is in a form capable of being processed by that system. 15 (e) An electronic record is received under subsection (b) even if no individual is aware of its receipt.”

(2)    Proof of documents (attached) received.

I believe it is important to note here that a ‘store-and-forward’ system, or a system that sends an email link out and waits for the recipient to click the link would not have been effective as it is unlikely that the parties being served notice would have voluntarily clicked the link to retrieve the court documents (since they had already refused to accept these documents when asked in prior email correspondence). So, proof of receipt of an email with a link, or even proof that a link to download was clicked would not likely constitute proof of delivery of documents. Further, an email tracking system that tracks email opening would not be effective as these require certain settings to be turned on by the recipient (display of images, or voluntary or automatic response to requests for read receipts) and even if these are turned on by all recipients, there would be no simple method of authenticating the record of opening and the content enclosed in the email that was purported to have been delivered/opened. The Gibson corporate counsel guide noted above discusses these points as well.

(3)    Authentication and court-admissibility.

The Locke Lord Bissell and Liddell “Legal Review of RPost Registered E-mail® service in context of Electronic Law relative to Authentication / Admissibility Requirements” provides a detailed discussion of requirements based case law, to assure court-admissibility of email records. In this case, the Court asked RPost to submit the evidence, “along with all necessary and appropriate exhibits, demonstrating compliance with each of the foregoing methods of service.” Since this legal review, when submitted with the RPost Registered Receipt email record, describes the authentication process for this receipt (ability to reconstruct the message content, attachments, fact of delivery, uniform times, Internet forensics, all mathematically associated together) and maps the receipt structure to the landmark case law that guides on email admissibility, we found it useful to simply attach as exhibits (a) a print out of the Registered Receipt email itself (while maintaining an electronic copy in case the receipt would need to be later authenticated), (b) the Gibson corporate counsel guide referenced above citing the UETA reference, and (c) the Locke Lord Bissell and Liddell legal review.

In fact, others have done the same and report this process has satisfied court requirements in Federal and State court – reference Engel & Siegel, LLC, a Chicago-based law firm that discusses email use in court.

For Reference:

MEMORANDUM OPINION AND ORDERThe Court GRANTS Plaintiffs Motion for Alternative Service of Process Under Fed. R. Civ. P. 4(f)(3) and directs RPost to serve process on Kagan under Rule 4(f)(3) by means of delivering the summons and complaint as follows: (1) by electronic mail on Kagan at the email address obtained from pointofmail.com’s web host; (2) by electronic mail on Kagans counsel, Agmon, at his email address shown in this case (Dkt No. 7, Ex. 7); and additionally (3) by international registered mail addressed to Agmon at his law office address in Israel as shown in this case (Dkt. No. 7, Ex. 4.) Thereafter, RPost is directed to file a notice with the Court, along with all necessary and appropriate exhibits, demonstrating compliance with each of the foregoing methods of service. Signed by Judge Rodney Gilstrap on 1/23/2012.