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.
The Better Chancery Practice Blog 
At least one court allowed service via Facebook.
In Mississippi? In pre-MRCP practice in contempt actions in chancery all that was required was the defendant’s signature on a certified mail receipt for a mailing with a copy of a pleading.
No. New York. http://nypost.com/2014/09/18/judge-oks-serving-legal-papers-via-facebook/
I think a fairly convincing case could be made that email service is more likely to actually result in notice to the defendant than process by publication.
In our current technological era, service by email seems akin to the service observed in Justice Court. The Constable is only required to post a Summons on the door of the defendant at the last know address provided by the Plaintiff.
Some jurisdictions have rules that allow the court to design a method of service that’s reasonably calculated to give notice if the plaintiff has done its diligent inquiry and the only standard method available is publication. Under rules like that you’ll see courts ordering email to the best known address alongside publication, under the reasoning that publication plus email to an address that you have reason to believe the defendant will see is at least more likely to reach the defendant than publication alone.
What would you think of a rule like that if it were proposed in Mississippi?
Email process, like publication, would be a constructive form of process, using a fiction that applies reasonably acceptable standards of due process. If enough assurance of acceptable notice could be established, I think it could work just like publication.