April 17, 2006

Internet Lawyer Tips | Service of Process by Email

Internetcases.com has reported this interesting technolgy case from New York where a court allowed service of process by e-mail. Tishman v. The Associated Press, (Slip Op.) 2005 WL 288369 (S.D.N.Y. February 6, 2006).

Here is the synopsis provided by internetcases.com:

Plaintiffs Tishman and Wilkinson filed a lawsuit against defendant Pine, but had difficulty serving Pine with the summons. The plaintiffs tried the conventional methods of service under New York law, such as personal delivery. They even tried the "nailing and mailing" method by affixing a copy of the summons to the door of Pine's residence, then sending a copy in the mail.

Tishman and Wilkinson had information, however, that led them to believe Pine was out of the country. Knowing this, they wanted to be sure that service was properly affected. Accordingly, they petitioned the court for permission to serve Pine by e-mail, pursuant to N.Y. C.P.L.R. §308(5), which allows service by such manner as the court directs, when the more conventional methods are "impracticable."

The court allowed service of the summons to an e-mail address Pine had used in a classified ad listing his house for sale. The court held that given the uncertainty about the success of the attempted "nailing and mailing" effort, and the fact that the Pine's attorneys wouldn't give a clear answer as to where Pine was living, alternative service by e-mail was appropriate.

There is a lesson to be learned here. Virtually, every State has a law for alternative service of process. In technology and internet law cases, the out of State or out of Country party is fairly common. Don’t forget that you can go to your Judge and ask for alternative service by e-mail in order to make sure you don’t come up against a "lack of notice" defense. Most States also have rules which provide that actual notice, even if it is not notice otherwise provided under the rules, will defeat a motion to set aside of default judgment. So don’t forget to try serving a party by e-mail in addition to all the other methods. Internet lawyers could further consider the "return receipt" option or hire a verification service so you can prove to the Court that the e-mail was received and opened.

COMMENTS

How Ludicrous! Just how can the courts prove that the recipient even received the email?

There is NO TRACKING SOFTWARE that can verify if I received that email and read it, contrary to what E.S. says above.

Enrico makes a good point. One such "tracking software" can be found at www.rpost.com. Their "Registered e-mail" provides a "Registered Receipt" that is considered to be legally verifiable and admissible email evidence, and an acceptable form of notice as defined by regulators.

Service of process by email is typically not allowed unless the court authorizes alternative service once common service methods have failed. You do need to show by affidavit or otherwise that the email address is valid and live. You also need to show that the email is received using various tracking software which will show location of email recipient, time opened, whether forwarded and to whom.

Just came across this guy - www.offinia.com - listing valid ways to get out of jury duty. It might be "unconstitutional" but it can't help to know!! ;-)

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