I strongly encourage anyone interested in the topic to visit his Blog. I am happy to see others who are passionate about the profession taking the time and effort to share their thoughts and concerns in an educational and meaningful way.

This issue is NOT “much a-do about nothing” like some within the process serving community would have you believe. It deserves our attention and it is my hope that articles like Robin’s encourage and open, honest and robust discussion that has been missing for too long.

I really enjoyed Robin writing and observations and opinions.  Keep up the good work Robin.

Singler broke the law and then lied to cover it up,” said Attorney General Andrew Cuomo. “It is not a victimless crime, but one that impacted lives and caused financial hardship for thousands of New Yorkers. Many had their bank accounts frozen, their wages garnished, and liens put on their homes, all because they were denied their day in court.”

It is being reported that he may get one year in jail. If true, I for one am outraged that someone that is responsible for such a terrible crime committed against thousands of people would only get a year in jail. He single handedly tarnished the image of professional process servers around the world. I believe that the private process serving community needs to speak up and demand that he and all those that helped perpetrate the alledged crimes be held to account for their actions. That includes the collection law firms that are alleged to have looked the other way when ALP claimed to have had such a high successful service rate.

Anyone in the collection food chain knows the type of results that ALP claimed to be achieving was impossible.

Full story http://bit.ly/5KSarS

In October 2009, a New York consumer rights law firm filed lawsuit alleging violations of the Fair Debt Collections Practices Act in the United States District Court of New York in the Southern District case number 09-CIV-8486 (DC). The complaint was filed against a variety of defendants representing the entire collections chain starting with debt buyers, the law firms they retained and the process serving agency they contracted with.

This case stems from the alleged massive fraud that the NY Attorney General’s office is currently investigating. The AG’s office filed its own lawsuit earlier this year. The AG’s office is attempting to have approximately 100,000 judgments thrown-out because they allege the process serving agency responsible for serving the complaints committed “Sewer Service”.

If you want to be blown away by what allegedly took place you need to read the AG’s complaint against the process serving agency and approximately 35 collection law firms. In one instance it is alleged that a process traveled over 1000 miles in one day serving complaints all over NY State, many at the exact same time they claimed to have served other defendants.

On December 28, 2009, the complaint filed in the federal court was amended by the plaintiffs making it a Class Action lawsuit. The plaintiff firm claims it could represent over 100,000 victims of judgments won since 2006.

Needless to say this saga continues to cast a negative light upon Debt Buyers, Consumer Collection law firms and Process Servers nationwide. One can only hope that those that are responsible for the alleged fraud in New York are brought to justice.

This brings up the question that if these companies are readily publishing information about how to serve process upon them for criminal cases, why not do the same for the purpose of serving civil or other process? If an attorney stumbled upon this list, what would stop them from sending process electronically in a civil case to these companies?

I decided to contact a few of major companies listed on the website to ask them how to send a civil subpoena for records. The following are copies of real emails I sent and the real responses:

From: Jeff Karotkin [mailto:jkarotkin@onelegal.com]

Sent: Wednesday, November 04, 2009 12:18 PM

To: xxxxxxxx@facebook

Subject: Subpoena for Records

Facebook: I have a civil subpoena for records to serve upon Facebook. Can I have it sent to this email address and if so what are the proper procedures to insure compliance.

Jeff H. Karotkin

Vice President of Strategic Development

One Legal LLC.

From: [xxxxxxxx@facebook.com]

Sent: Wednesday, November 04, 2009 3:55 PM

To: Jeff Karotkin

Subject: RE: Subpoena for Records

Hello – We are in receipt of you request, please feel free to fax the subpoena to: (xxx) xxx-xxxx. Please also note a check of $50.00 will need to be sent for processing.

Thank you – Facebook, Inc.

From: Jeff Karotkin Sent: Wednesday, November 04, 2009 12:11 PM

To: xxxxxxxxxxxxx@cox.com

Subject: Subpoena for Records

Mrs. Riley I have a civil subpoena for records to serve upon Cox Communications. I was wondering if I can have it sent to this email address or if there is another preferred method for serving the subpoena.

Thanks

Jeff H. Karotkin

Vice President of Strategic Development

One Legal LLC.

From: xxxxxxxxxxxxx@cox.com

Sent: Thursday, November 05, 2009 5:53 AM

To: Jeff Karotkin

Subject: RE: Subpoena for Records

Mr. Karotkin,

You may send your subpoena as a .pdf attachment to this email address. Subpoena Coordinator Cox Communications, Inc. xxxxxxxxxxxxx@cox.com

When a company receives service by fax, email or snail mail today do they care if it was properly served? Since companies are providing information about how to service process upon them, it appears that they do not care. Some companies might even prefer to receive electronic papers because it is simply less hassle.

Electronic communications and technological advances are rapidly changing the world in which we live and work. It was not that long ago that the Internet was not widely used, few companies had websites and Google, Facebook and Twitter didn’t even exist.

Five years ago NAPPS had a panel discussion on eFiling and eService with discussions about these changes might mean to our profession. Many in the room thought that the impact on process servers would be minimal, that electronic service of process would not threaten traditional service of process. Today, we can see these changes being made right before our eyes. There are more than a dozen examples in the news where papers have been served via via Twitter, Facebook, e-mail and even text.

Today, law firms and their clients are demanding that their vendors do business smarter, faster and more efficiently than ever. Gone are the days when law firms mailed secondary service/correspondence. If a firm is still printing, collating, stapling, labeling and mailing documents to opposing counsel they are behind the times.

As technology improves and the legal industry changes, the process serving industry needs to reflect those changes too. The legal industry is using technology to leverage, facilitate and streamline the practice of law and will expect us to follow suit.

The industry is at a crossroads where we have the choice to accept that technology is going to advance, or we choose to ignore it and continue serving papers with blinders on. I believe that if we hope to successfully insure our long-term viability we need to collectively adapt and evolve.

“It is not the strongest of the species that survives, nor the most intelligent that survives. It is the one that is the most adaptable to change. “ Charles Darwin

Several years ago the National Notary Association (NNA) recognized the threat of eNotarization in their industry. They realized that they needed to be a part of the solution if they if their members were going to retain a role. Four years ago they gathered various notary groups and interested parties to start a discussion about eNotarization. Today, thanks largely to vision, determination and focus they lead the way forward in eNotorization, keeping their interested parties in business. The private process serving profession faces similar challenges today.

Individual process servers without a strategy for industry development will have a hard time ensuring their long-term success.

This challenge is bigger than one association, it requires that all interested parties partner in an effort to create the foundation for a strategy moving forward. Once the foundation is in place, we can continue to build and transform our industry to not only keep pace with the legal industry, but also ensure that process servers’ businesses will continue to thrive. If we do not find a way to clarify our role in an electronic world, we risk being obsolete one day very soon.

How many of you have actually read those Terms and Conditions before you checked the little square box? Me either, recently I was curious or and actually read the Terms and Conditions on two websites. Below are two examples of what I found in those Terms & Conditions.

“Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notice to it under this waiver and agrees that such service shall constitute good and sufficient service of process and notice thereof.”

Here is another common waiver

“By visiting the Site, you agree that the laws of the State of New York, without regard to principles of conflicts of laws, will govern these Terms of Use and any dispute of any sort that might arise between you and BrainPOP. Any dispute relating in any way to your visit to the Site or to the Content, products or services sold or distributed by BrainPOP or through BrainPOP shall be solely adjudicated in Supreme Court of the State of New York or in the U.S. Federal District Court located in New York County, New York, and you consent and submit to exclusive jurisdiction and venue in such courts and agree to accept service of process by electronic mail. “

It is one thing to knowingly waive ones rights to jurisdiction and service of process, it is entirely another when we all know no one reads the terms and conditions online. We just go about our business and check that little box and hit continue without ever knowing we have waived our rights.

The waiver of service and electronic service are challenges to our livelihoods that we start thinking about and talking about. Until we understand the challenge before us, we are not likely to take any action that protects primary/traditional service of process. The type of action that needs to take place should inform and educate process servers as well as the bench, bar and public if it is hopes to be successful. Most importantly, that action needs to enable process servers to retain the vital role they perform today.

Some would have you believe that my desire to inform, educate and encourage an open and robust discussion on the topic of electronic service of process and the erosion of our profession is somehow nefarious. Nothing could be farther from the truth. Do not be lead astray by those that are ignorant or afraid of change.

Do not let their belief that the process serving profession does not need to evolve, stop you from finding a way to remain relevant.

The final Federal Trade Commission Roundtable Discussion is being held later this week in Washington D.C. The event is open to the public and can also be viewed live via webcast.

Once again the roundtable includes a session focused on the Service of Process. The process serving profession is fortunate to have Larry Yellon on the panel representing NAPPS. The session dealing with the service of process is on the agenda first thing the morning of 12-4-09.  The published topics related to the service of process are as follows:

For detailed information about the session, the speaker bios, the full agenda and instructions on how to view the session live via webcast please visit the follow FTC webpage.

Well it seems as though not a week goes by when there is not another instance of electronic service process in the news or being written about in the legal community.   Increasingly our customers and constituents view the physical act of service of process as being out of touch with the times.   We can not afford to stand by and read story after story suggest that service of process through social networks and by email is an acceptable or reliable means for effecting service.   

The following is a link to an article that appeared in the legal publication South East Texas Record last month. Please check it out the author mentions several of the instances I have written about on my blog and on this forum.

http://bit.ly/1gOny7

The following is the closing line of his article:

“Professional process servers may no longer have to worry about the cat-and-mouse challenges of physically serving defendants, if an online alternative beckons.”

The article is about Electronic Service of Process at Home and Abroad – Allowing Domestic Electronic Service of Process in the Federal Courts.   The article covers the history of Electronic Service of Process in the Federal Courts going back to the earliest instances where electronic service was allowed by facsimile, as well as, the current rule Federal Rule of Civil Procedure 4(f)(3) that allows in certain circumstance for a foreign defendant to be served electronically.  

The article goes on to make reasoned case for why the Federal Rules of Civil Procedures should be amended to keep pace with modern methods of both business and personal communication.   The draft Law Review Article is 22 pages of must read material if you want to gain a better sense of how our constituents, federal practitioners and federal judiciary view the issue of electronic service of process.  

The following are just a few of the key points the authors offered in support of amending Federal Rule 4 to allow domestic electronic service of process:

“When the Federal Rules were first drafted, the typewriter and telephone were on the cutting edge of communications technology.”

“While the law hardly advances at the speed of technology, federal courts have adapted to new technology. There is a bevy of precedent for amending the Federal Rules to keep up with technology.”

 “[Electronic filing systems] are now in use in 99% of the federal courts.”

“The use of this electronic filing system not only replaces the courts’ old electronic docketing and case management systems, but also provides courts the option to have case file documents in electronic format, and to accept filings over the Internet.”

“In a service of process context, there is a strong efficiency argument for the use of email. An email can be sent for little or no cost and can reach the recipient’s inbox literally moments after it is sent.”

“ It is likely that history will repeat itself in the international adoption of domestic and international electronic service of process via email and social networking communications, only this time around the United States will follow the lead of Australia and New Zealand.”

“Even if all the arguments against electronic service of process hold true, when electronic service of process is used as a secondary or tertiary channel of service it is more secure and more reliable than the channels currently used. Federal courts already allow service via means that are less reliable than normal channels, provided that more reliable channels are first exhausted.”

“Technology has evolved to the point that electronic service is superior to many forms of traditional service. Electronic service should now be treated as an equal to paper media by the Federal Rules.”

The entire draft article can be found at the following link: http://www.fclr.org/fclr/articles/html/2009/hedges.pdf I suspect a few of us could poke a few holes in the logic supporting their premise. But just a few… 

The bottom-line in my humble opinion is that the private process serving profession is in big trouble if it does not confront this challenge in a way that forges a path forward that we can live with.

Earlier this year a judge in Alberta, Canada signed an order allowing a defendant to be served by posting the Notice of the Action to the defendants Facebook account. 

This is the third instance of Facebook being allowed/ordered for the Service of Process that I am aware of.   First in Australia and the second in New Zealand, both occurred in the last 12 months. 

This post comes on the heals of a posting regarding Service of Process via Twitter earlier this week.   Clearly judges around the world see social networks as being at least as reliable a means for giving notice if not more so than publication when all other methods have failed.    I have to admit that I would agree that in certain circumstances service of process via social-networks or by other electronic means makes more sense than service by publication. 

I would not dismiss these recent developments as being a fad or a trend.  They are important and I believe they demonstrate that the courts and our customers are more and more willing to consider alternate manners of service that only a few short years ago where unthinkable. 

Just this evening I received an email from a fellow process server in Nevada.  He wrote that he has realized that his court filing business is all but gone come February of next year because the courts in the 8th Judicial District of Nevada has mandated electronic filing.  

He admits knew this day was coming.  He also admits that he was not prepared for the reality of it hitting him so soon and so hard.   He now finds himself wondering how to adjust his business model in order to survive the changes that are happening around him.   He is not alone; process serving companies from Seattle to Philadelphia in the last year have found themselves facing the same dilemma. 

The Service of Process has remained largely unchanged for more than 100 years.  I believe we are fooling ourselves if we think the act of serving process will not see a dramatic change in the years to come. 

My point is we have been talking about eFiling and eService at a national level for more than 10 years.  We need start preparing ourselves and our business for these and other challenges if we hope to remain relevant in the digital age.   

Are we on our own as we face these challenges or will the state and/or national process server associations lead the way?   Do those associations even have a role in addressing these challenges?  If so, do they have the talent and where-with-all to help insure the profession remains viable for many years to come?    

What do you think?

The San Francisco session also had the Service of Process on the agenda.  This time around process servers were given an opportunity to participate as part of the panel of speakers.  Paul Tamaroff and Andy Estin were on the panel and represented the interests of the private process serving profession.   

The San Francisco session was less painful to witness but it was not without its moments where the professionalism of the industry was called into question.  Both Andy and Paul offered suggestions on how to address the problems.

If you are interested in viewing the video webcast or reading the transcripts of either the Chicago or San Francisco sessions that were dedicated to the Service of Process and Default Judgments. I have provided the following links:

Chicago Webcast:   http://www.mobilevideo.net/ftc/080509_ftc_sess1/softv.index.htm   

Chicago Transcripts: http://htc-01.media.globix.net/COMP008760MOD1/ftc_web/transcripts/080509_sess1.pdf 

San Francisco Webcast: http://www.mobilevideo.net/ftc/093009_ftc_sess1/softv.index.htm                           

San Francisco Transcripts: http://htc-01.media.globix.net/COMP008760MOD1/ftc_web/transcripts/093009_sess1.pdf 

You might want to take an Advil or two first.