Process Servers and E-filing
E-filing. This seven-letter word is usually considered a “four-letter word” by process servers. As the legal profession is changing and becoming more technologically savvy, it is a good idea for legal service providers, especially process servers, to keep an eye on technological innovation. But, are process servers really being threatened by the rise in electronic filing, or e-filing?
The process of e-filing began in 2001 in bankruptcy courts. Federal district courts soon followed in May of 2002, with appellate courts offering e-filing in 2005. Once federal courts started offering e-filing in January of 2006, more than 99 percent of federal courts went to requisite e-filing.
The Administration Office of the U.S. Courts reports that almost 32 million cases have been filed online since federal e-filing began, with more than 400,000 attorneys registered in the federal e-filing system, Public Access to Court Electronic Records (PACER). Case Management/Electronic Court Filing (CM/ECF) is the federal system for submitting and managing electronic documents.
E-filing is not just limited to federal courts, though that is where it is most prevalent. Many state courts and county courts have begun to make the transition and law offices have no choice but to follow; but it also saves those law offices time and money.
Where does that leave a process server?
Bob Musser, of Database Services, is well-versed on how e-filing has begun to affect the process servers. Though not a process server himself, Musser is involved with the profession on the state level as vice president of the Florida Association of Professional Process Servers (FAPPS), and on the national level, as vice president of the National Association of Professional Process Servers (NAPPS). He is chairman of both the FAPPS and NAPPS Technology Committees.
While Musser admits that process servers do need to keep an eye on technological innovation in the legal world, he believes that process servers will not be obsolete any time soon. By differentiating between primary service of process and secondary service of process, Musser shows that, for the most part, process servers can thrive in today’s increasingly electronic society. He explains that most communication between opposing parties in legal cases is done electronically. However, this type of communication is considered secondary service because it happens after the defending party has been notified that legal action is being taken against them. The notification process is considered primary service, which is where process servers come in.
As Musser points out, “a court has no jurisdiction over anyone until they’re told they’re part of a court case, which you tell them by serving. Part of the due process system is that you have to be notified properly.”
Since legal action cannot be taken against someone until they are notified, primary process is exceedingly important. Musser asserts that process servers “aren’t going to lose that piece of the pie anytime soon.”
In addition to actually serving papers, process servers can work with law firms to e-file court papers for them.
In areas like Texas and Washington D.C. where the courts use CF Express for efiling, lawyers are able to set up delegate accounts for process servers, allowing the process servers to continue their job and law offices to use e-filing.
Other e-filing software, such as Tybera, are incorporating process servers into their software, and the American Bar Association (ABA) also recognizes that electronic filing is a large part of the legal world.
The ABA E-Filing Committee adopted Best Practices regarding electronic filing. Most notable in the Best Practices was the statement that while electronic service of process could be considered acceptable service if the receiving party waives their right to customary service, “electronic mail never is sufficient as a general rule to reliably establish electronic service of process or a waiver.”
While larger corporations such as hospitals who tend to be served a lot may have a secure electronic means of receiving service of process and might waive their right to paper service, most law firms, smaller companies, and private parties will not have secure servers to receive electronic service of process, thus requiring process servers to serve them with legal documents. In addition, in some courts, such as the Maricopa County, Arizona courts, affidavits of conventionally served documents cannot be filed electronically, further securing the role of the process server in not just obtaining, but also filing, these documents.
Though at initial thought e-filing might seem to be potentially devastating to process servers, there is actually opportunity for to adapt and grow with the rise in electronic filing. It is imperative that process servers start thinking of the future now:
• Acquire a computer with a fast internet connection;
• Be sure to install a full version of Adobe Acrobat to create and access PDF files, the most widely used format for sending electronic documents.
• Create relationships with major e-filing corporations, helping them understand not only the role of process servers as messengers of the court, but also the importance of process servers having the ability to participate in e-filing.
With proper preparation, e-filing does not have to be a four-letter word for process servers, but instead can be used as a tool to increase ease and communication amongst all parties in the legal world.
• The American Bar Association’s Electronic Filing Court Rules http://www.abanet.org/tech/ltrc/research/efiling/rules.html
• National Center for the State Courts - E-Filing Resources http://www.ncsconline.org/wc/CourTopics/ResourceGuide.asp?topic=ElFile
• Courts With E-filing http://www.servenow.com/resources/e-filing
• Courts Using PACER http://pacer.psc.uscourts.gov/cgi-bin/cmecf/ecf-links.pl