by Jon Vanderlaan – oaoa.com
District judge: Texas law now says delivery must be in person, but rules could change in future
With technology becoming more prevalent in courthouses and electronic filing becoming a desired service, one company is trying to convince attorneys and judges why serving court papers through email is reliable.
When someone has a lawsuit filed against them, an officer gives notice to the person being sued. Current state law requires person be served notice in person, and then they have 10 business days to respond to the lawsuit. But that isn’t always possible.
Zafar Khan, CEO of electronic message and document service company RPost based out of Los Angeles, said an opinion from the U.S. Eastern District Court further proves the legitimacy of serving papers online. While suing a man in an East Texas federal court for infringing on the company’s technology, Khan said there was no way the company could serve the man papers without a physical address and an uncooperative attorney.
So instead, the company’s attorneys received the go-ahead from a federal judge to serve the man via email, and provided a “forensic snapshot” that proved the message had reached its intended destination.
Included in that snapshot, Khan said, was the registered time of delivery and other evidence that it was received.
“The key here is that standard email really is not sufficient for service. There’s no confirmation of delivery,” Khan said. “What we’re trying to do is at least make people aware that if you are trying to serve by email, this is the way to do it.”
Even then, Khan said attorneys had to prove they tried many other ways to reach the man before they resorted to serving by email.
However, 70th District Judge Denn Whalen said that possibility is far off in the future for state courts.
Laws on the books from the Texas Supreme Court dictate that delivery of papers must be in person, and if that is not possible, other avenues have to be explored for service.
Whalen said while email service is not an option now, he can see it in the future becoming the norm.
“We’re moving more toward electronic filings, which I think is a good thing,” Whalen said. “I would hope (email service could work), but you still need to ensure in some form or fashion that the party being sued has notice.”
Khan said that is not a problem because of the service, and in addition to the federal court’s opinion and the documentation of the registered email, Khan said he also has a third-party opinion from a legal firm about the legality of the service.
Because each judge is different and can make decisions regarding email service, Khan said it is impossible to make a blanket statement about when email service could become a normal procedure, and that it’s important for a thorough process to be used to convince judges of its legitimacy.
“I think for the foreseeable future, if you want to serve by email you’ll have to ask the court,” Khan said.
Whalen said he can see the potential benefits of email lawsuit service; mainly that the person does not have to leave their computer to serve a lawsuit.
But he again warned that the sole purpose of document service is that the person is aware he or she is being sued, and that needs to be satisfied above all else.
Sgt. Gary Duesler, head of the the Ector County Sheriff’s Office civil which serves papers and warrants, said he doesn’t think email serving will replace in-person service for just that reason.
“Everything I’ve been taught is it has to be personal service by the officer because who’s to say you got that email?” Duesler said. “You’re always going to have somebody that goes, ‘Well, it wasn’t me that opened that email.’ ”
With about 500 to 600 papers served each month on top of about 400 warrants served, Duesler doesn’t see the in-person serviceman or servicewoman going away any time soon, but admits new technology could change that.
“Technology has changed everything with every field there is,” Duesler said. “That’s just something that’s going to have to be proven by the courts that it’s going to be reliable enough.”
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