The OASIS LegalXML Electronic Filing Technical Committee presented a proposal two weeks ago that, if adopted and implemented, may change how case commencing documents are transmitted to process servers, sheriffs, and registered agents. Limited Electronic Service of Process is a proposal that would become part of a national electronic court filing standard (ECF 4.0 or its probable successor ECF 5.0), which several of the country’s largest electronic courts have already adopted.
The idea might also be the first step toward allowing, for example, electronic service of process of case initiation documents directly from the court to registered agents and other entities who choose to forego physical service.
Is Electronic Process Service Coming? Are you all set? What are the similarities between the courts and private process servers?
How things have changed in the courts. More than 30 percent of the population of the United States is now served by courts that have already transitioned to an electronic courthouse or are in the process of doing so. This digital revolution has been in the works for quite some time. I believe that 30% is only the beginning; the speed with which courts are moving in this direction is increasing. As a result of this shift, courts, their constituents, and justice partners have had to reconsider how they interface with the courts and work more efficiently. Electronic filing, electronic service between represented parties, electronic alerts/case events, electronic docket sheets, and case management tools are now available to court constituents, all of which have arguably forever transformed how people interact with a digital court.
The Server for Processes – The process serving industry has not experienced the type of shift I outlined above. It has been slow to adapt and even hesitant to embrace the digital revolution. The exception is now the electronic service of the case beginning documents. That is not to argue that it is a terrible thing. That said, I believe it is naive to believe that traditional process serving is immune to the same factors that have changed digital courts.
For the greater part of a decade, I’ve been lobbying for process servers to accept change. I’ve already stated that if the industry does not actively participate in defining the future, someone or something else will.
Electronic Service of Process – As previously stated, electronic service of process is an exception. That exception applies in cases where a party can show the court that they have exhausted all traditional methods of service and the judge orders a method of service that is otherwise reasonably calculated to deliver the actual notice. This site has documented countless instances of this happening, not just in the United States but around the world.
The Limited Electronic Delivery of Process concept includes the idea of allowing attorneys who are either registered agents for an entity or attorneys of record representing parties in existing cases to opt-in and accept the primary service of documents electronically on a case-by-case basis. This type of structure, in my opinion, makes the court equal to a physical process server.
To be honest, the idea of a court acting as a process server is a threat to traditional process servers that should be avoided regardless of whether the service is physical or electronic. If an electronic service process is to be adopted, it must follow methods that are consistent with the physical standards, laws, and statutes.
The graphic below is a simplified illustration of an electronic service event that highlights the role and relevance of a neutral third party (process server) in ensuring a secure, dependable, and trusted transaction. The eProcess Server would be in charge of the service event, attesting to the facts of the transaction and providing a return or proof of service in the same way as a process server would for a physical service event.