Process Servers Get E-Mail Assistance

You’ve seen it on television: After a long search, the process server finally hunts down the elusive target, knocks on the door and hands the defendant a subpoena. Justice prevails.

In real life, serving a court document isn’t always so easy or successful. It can be an expensive, time-consuming procedure that becomes more difficult when the papers must be served internationally. Generally, hand delivery or “snail mail” is the preferred means of serving a process. And yet some culprits, like cyberscammers, often use e-mail addresses and Post Office Boxes specifically to avoid the law.

But for the first time, a federal court allowed documents to be served by e-mail. Here’s the story and what it could mean for you.

Background
Rio Properties Inc. (RIO) owns a hotel and casino complex in Las Vegas. It sued Rio International Interlink (RII), a Costa Rican Internet gambling operation, for trademark infringement. The problem: RII has no physical location, it exists only on Web servers with an e-mail address. Clearly, it was easy to evade process servers.

Solution
RIO sought a court order for an alternate means to serve papers, by using RII’s e-mail address and the “snail mail” address RII used when it registered domain names.

However, RII failed to adequately respond to requests during discovery and failed to comply with the court orders.

Decision
The court granted RIO’s claims by default. RII finally responded with an appeal and the higher court upheld the lower court’s judgment.

The appeals court acknowledged that it was entering “untrodden ground” because there was no federal court precedent, condoning service of process over the Internet or via e-mail.”

But in this case, the court decided, e-mail was, the method of service most likely to reach the Costa Rican Internet company. In fact, the court noted, RII structured its business so that it could only be reached by e-mail.

Implications
While the decision made it possible to track down an elusive defendant, the court did note that lawyers couldn’t unilaterally decide to use e-mail as an alternative method of serving process. They have to get a court order and the courts are likely to look at each instance on its own merits, potentially limiting rulings to cases where the usual means fail.

Moreover, the appeals court noted that e-mail has some inherent problems:

• There is no reliable means to verify receipt of an e-mail message.
• The limited use of electronic signatures could raise verification problems.
• Technological problems could create controversy over whether attachments were received.
• Current imaging technology could make attachments difficult to read.

Still, this new window of technology should make it easier and faster to pursue, in the court’s words, e-business scofflaws who play hide and seek with the federal court. And as companies and international actions become increasingly wired, the reasoning behind the appeals court’s decision could become more prevalent.