Electronic Service of Process
May 14, 2015 § 7 Comments
An attorney recently asked me whether he could effect service of process via email. It seems that the proposed defendant would communicate with the attorney’s client by email, but kept his address and whereabouts to himself.
My response was that there is no provision in MRCP 4 for electronic process, and until there is, he and his client should make diligent inquiry to ascertain the same, and obtain process by publication.
Later I stumbled across MEC rule § 3.F.3:
A party may not electronically serve a summons and complaint, but must perfect service according to M.R.C.P. 4 or 81, as applicable.
That covers that.
Also, MEC rule § 6.A.2 requires summonses and complaints to be issued by conventional means.
At first blush, electronic summonses and subpoenas would appear to be the next electronic innovation, since email is so ubiquitous. The flaw in it, however, is that there is no guarantee that the recipient of the email is actually the person who owns the email account. Due process requires that a person have actual notice of the filing of the suit, and an opportunity to be heard. Personal service fulfills those requirements, and publication constructively does it. Email leaves open the possibility that a judgment could be set aside because the recipient was not the addressee. Until that possibility is eliminated somehow by the technical folks, we will have to stay our current course.