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.
How Not to Propound Discovery Requests via Email
March 18, 2014 § 5 Comments
If you’re like me, this entry among the MSSC hand-downs last Thursday had you scratching your head:
EN BANC
2013-IA-01784-SCT
Amber Olsen Johnson v. Walter Thomas Johnson; Madison Chancery Court; LC Case #: 2012-0921; Ruling Date: 10/14/2013; Ruling Judge: Janace Goree; Disposition: The Petition for Interlocutory Appeal filed by Petitioner is granted. This matter is remanded to the Madison County Chancery Court for entry of an order denying Respondent’s Motion to Compel in cause no. 2012-0921. The notice of appeal having been deemed filed, the filing fee is due and payable to the Clerk of this Court. The Respondent is taxed with all costs of this appeal. To Grant and Render: Waller, C.J., Dickinson and Randolph, P.JJ., Lamar, Kitchens, Chandler, Pierce and King, JJ. To Grant: Coleman, J.; Randolph, P.J., for the Court. Order entered.
An interlocutory appeal is granted and the chancellor is ordered to enter a discovery order. What exactly is going on here?
After I read Jane’s and Anderson’s blog posts on the ruling, it was much clearer.
It seems that the trial court had granted a motion to compel based on a R34 request for production of documents (bank records) that was directed via email to an employee of opposing counsel, and not to opposing counsel herself. Petition was filed for an interlocutory appeal from the order. The MSSC accepted the appeal, dispensed with briefing, and ruled that an email request made by counsel for one party to an employee of counsel for the other party does not meet the notice requirements of MRCP 5 and 34.
Jane includes the transcript of the trial-court proceedings, in which counsel for the party seeking discovery argues that an email request, no matter how informal, complies with the requirements of R34, which only requires a writing. The MSSC did not directly address this particular point.
The two points to take away from this are:
- Sometimes we get accustomed to dealing with a particular paralegal or other staff in opposing counsel’s office. Notice to that staff member will not suffice as notice to the attorney under R5 or R34. Here, the missing component was either an automatic electronic acknowledgment of receipt from the attorney, or the attorney’s separate acknowledgment, either of which is required in R5. The acknowledgment of a staff member does not satisfy the express requirement of R5 that it be made by the attorney.
- If you find yourself scratching your head over some hand-down of the appellate courts, it might pay you to take an extra three minutes to look up the order behind it. If you don’t, you might miss something that could impact a future case of yours.
Thanks to both Jane and Anderson for posting on this, and to Beverly Kraft for calling it to my attention.
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