Current
versions of the OASIS LegalXML Electronic Court Filing (ECF) specification
address the concept of “secondary electronic service” whereby parties and/or
attorneys may be served documents that do not require “service of process,” as
defined in state statutes, state court rules, and/or local court rules. Most
e-filing implementations, whether they’ve adopted ECF or not, allow for
secondary electronic service, which has proven to be efficient and effective
for case litigants.
Building upon
the success of secondary electronic service, the ECF Technical Committee (TC) proposes
to enhance the Legal Service Major Design Element (MDE) for OASIS LegalXML ECF
version 5.0 consideration. The proposed enhancements are herein dubbed Limited
Electronic Service of Process or Limited eSOP. The Limited eSOP concept aims
to fulfill the following objectives:
1.
Enable authorized third-party
organizations (e.g., process server, sheriff, constable) to receive service of
process documents and document metadata through a Filing Assembly Major Design
Element (FAMDE) or Filing Review MDE Electronic Filing Manager (EFM) for the
purpose of completing service of process on behalf of a requesting individual
or organization.
2.
Enable authorized third-party
organizations (e.g., process server company, sheriff, or constable) to submit
proof-of-service documents and document metadata to a court through a system-to-system
interface between the authorized third-party’s records management system
and an FAMDE or EFM.
3.
Enable attorneys, who are either
registered agents for an entity or attorneys of record representing parties on
existing cases, to opt-in and accept primary service of documents
electronically on a case-by-case basis. (Implementation is subject to governing
state statutes and applicable court rules).
In fulfilling
the objectives outlined above, this document makes the following assumptions:
1.
The FAMDE or EFM may initiate
Limited eSOP via electronic messages to a third-party entity’s system that is
used in the preparation and service of case documents.
2.
ECF support will be extended to
entities whose primary purpose is to complete service of process per the rules
of the local jurisdiction(s) they serve.
3.
ECF will address a Limited eSOP
message within the XML schema for the ServeFiling operation. This may entail
modifying the existing ServeFilingMessage or creating a new message specifically
designed to address this need (e.g., ServeProcessMessage). New
ServeFilingMessage XML elements may include those that carry instructions to
the third-party entity responsible for fulfilling service of process.
4.
The LegalXML ECF sequence diagram and
associated supporting specification language will be added to the specification
documentation that addresses the concept of Limited eSOP and accompanying
messages.
When reviewing this document,
please reference the Appendix B. Terms section.
The following observations/experiences are
associated with service of process. These facts aid in stating the problem(s)
to be solved and identifying possible solutions that address the problem(s).
1.
Electronic primary service is not
typically allowed in e-filing implementations across the country.
2.
Secondary electronic service is
typically allowed in jurisdictions where electronic filing is or is not
available.
3.
The rules governing both primary and
secondary service are generally defined by court rules, administrative orders,
and/or state statutes.
4.
Courts have generally not wanted
the responsibility of facilitating:
a. Primary service between parties in a case
b. The exchange of discovery materials between parties in
a case
5.
Some courts that directly support secondary
service require:
a. All parties and/or party representatives, once
identified in a case, to accept secondary service electronically
b. Parties served via secondary service or the parties’
representatives to log into a system or application to retrieve documents
i.
A link to the documents to be
served are contained in an electronic mail sent to served parties and/or party
representatives
ii.
Once parties and/or party
representatives successfully log into the electronic filing portal, service is
confirmed
iii.
Once parties and/or party
representatives successfully log into the court’s electronic filing portal or
portal provider, they agree to receive ALL secondary service electronically
iv.
Note: Once successfully registered, case participants may
accept secondary service electronically
6.
Some courts that directly support primary
service charge service fees (fees vary)
7.
Electronic secondary service has
been recognized as being a convenience in terms of time and cost for parties
and/or party representatives
a. Document assembly is done once and distributed
electronically to wherever needed
b. No runners are required
c. Secondary service can occur 24x7x365
8.
Process servers may submit proofs-of-service
to courts
9.
Process servers could submit
proofs-of-service via court electronic filing, but should not be given access
to case records by virtue of the fact that they use court electronic filing to
submit proofs-of-service
10.
Discovery, while out-of-scope for the
purposes of this position paper, may require similar functional support as
Electronic Service of Process
Which mode(s) of electronic court filing is best
for facilitating Limited eSOP and by which Legal Service MDE operation name,
ServeFiling or ServeProcess?
To assist in formulating additional Legal Service
MDE support approaches, it is useful to understand the methods by which
secondary electronic service is supported today.
Electronic
Mail
Many jurisdictions have adopted court rules
whereby the use of electronic mail (email) to affect secondary service is a
valid means of service so long as the recipient party has agreed to be served
electronically. In the absence of electronic filing, agreement between parties
/ attorneys might occur in a variety of ways depending on the local court
rules, including but not limited to verbal agreement, written agreement via
email, fax, or letter, or a signed and filed stipulation with the court. Once
agreement has occurred, secondary service to may occur by simply attaching a
document to an email and sending it to the party to be served.
Where e-filing is present, service by email may
also occur but some differences may exist in how parties agree to service, and
how the generation and delivery of service emails occurs. Some e-filing systems
and the jurisdictions they’ve been implemented in require the user to agree to
e-service by creating an e-filing account and participating in e-filing. Others
allow the user to register, and agree to e-service by other means, such as
adding themselves as a service recipient to specific cases, or system wide.
Where e-filing is present, it is often the
e-filing system that generates secondary service emails to the service
recipient, not the filing attorney themselves. These systems may attach the
documents to be served to the email, or simply provide a link within the body
of the email for the recipient to click and view the document.
In-App
Notifications
Other jurisdictions have adopted court rules that
allow for electronic service, but do not define electronic mail as a valid
means of service. Such jurisdictions have stricter requirements about how
electronic service may occur, often due to the acknowledgment that the delivery
of email to a recipient cannot be guaranteed for a variety of reasons (e.g.,
spam filters, IP or domain blacklisting, etc…). One method that guarantees the
electronic delivery of service documents to a specified recipient is by the use
of “in app” or “system notifications” within an application by which the
service recipient has created an account on. Such systems require the service
recipient to login to the system to view any new notifications that may have
been sent to them. The notification will include detail about the documents
being delivered upon them, as well as access to the documents themselves.
In the absence of electronic filing, such a system
may come in many forms. It may be a feature of an existing court application,
or stand alone. Where e-filing is present, the system where these in app
notifications occur is often the e-filing system itself.
It should be noted; that where valid service
occurs by the system notifications such as those described here, this is often
supplemented by the use of email to alert the service recipient that a new
notification has occurred. The email itself, however, is not considered valid
service, but simply a courtesy alert.
The following approaches are proposed as Legal
Service MDE enhancements in support of Limited eSOP. Each of the proposed
approaches satisfies one or more of the objectives outlined in the Introduction
section. Additionally, any approved approach(es) will require the definition
of request/response message pairs and error handling methods.
Common Registration System & Service
This approach
exposes a service that front-ends a common registration system. The common
registration system/service could be implemented as part of the EFM, an FAMDE,
or third-party Legal Service MDE.
A common
registration system/service introduces several benefits. For instance, in a
multi-vendor FAMDE supported environment, subscribers can direct service to
opposing parties registered in the system without having to know to which FAMDE
to direct service (the portal will take care of the distribution).
Additionally, portal registrants (e.g., free-lance attorneys, process servers)
could include free-lance service providers that could be called upon on-demand
by anyone in need of Limited eSOP services. Ideally, only one registration
profile would be required for each registrant regardless of the type of role
s/he performs during their lifetime (e.g., independent attorney, law firm
attorney, judge, court clerk, process server, self-represented litigant,
etc.). Due to file size limitations associated with electronic mail, the
portal could include support for served parties to retrieve their documents
(non-registrants could be required to establish an account before they are
permitted to retrieve their information).
The portal’s
registration system could be based on an open standard such as the Lightweight
Directory Access Protocol or LDAP. Adopting vendor-neutral, industry standard
application protocols that support Internet-based communications is a plus.
The portal’s registration system could be made to scale to support other
public-facing services in addition to electronic filing, making it a good
long-term investment strategy.
Specific error
handling methods are needed, particularly when an opposing party is not known
to the portal’s registration system. If an error occurs, the sender could opt
to affect service through another approach (e.g., e-mail, personal service).
Challenges
with a common registration system may include the fear some courts may have of
being perceived as service of process intermediaries. Like e-filing, though,
terms and conditions governing the use of the service can limit the court’s
exposure, particularly due to technical issues that may arise.
Figure 1: Central registration service
facilitates Limited eSOP message exchanges on behalf of FAMDE subscribers. The
EFM portal could optionally host service documents to guard against errors that
can occur when document(s) exchanged exceed email gateway file size limitations.
GetFilingAssemblyProviders Operation
This approach
calls for a new operation that enables FAMDEs to query other court-supported
FAMDEs for information about their respective registrants.
The benefits
of the proposed operation are similar to those identified in the Common
Registration System & Service approach (above), i.e., the operation
facilitates the exchange of opposing party FAMDE registrant information, which
enables litigants to affect Limited eSOP in a multi-FAMDE court-supported
environment.
The proposed
operation differs from the Common Registration System & Service approach in
that it enables direct communication between FAMDEs. There is no Common
Registration System & Service that responds to FAMDE registrant information
requests and the court would not serve as the message exchange intermediary.
Figure 2: FAMDE subscribers serve
opposing parties directly via a FAMDE-to-FAMDE message exchanges.
Post Service Documents to a Secure/Trusted Third-Party File
Hosting Service
This approach
enables the posting of service documents to a third-party hosting service (e.g.,
Dropbox, Microsoft OneDrive, Apple iCloud) by parties and/or party
representatives. Opposing parties and/or party representatives, based on a
formally defined notification process, would retrieve the served documents from
the third-party hosting service.
The relatively
light-weight approach leverages existing facilities through which service of
process may take place. Notification to the opposing case participants can
occur via email messages containing hypertext links to service documents posted
to the third-party hosting service. This approach is also similar to
leveraging the EFM as a place to post service of process documents, which
mitigates the risks associated with e-mail and the transfer of large
documents. Audit logs of email notifications and document access attempts
could be collected for confirmation of service delivery.
The challenge
with this approach is that the litigants must know the electronic mail addresses
of the opposing party(s) and/or party representative(s) to be served.
Figure 3: FAMDE subscribers exchange
service documents via an external 3rd party service document
portal. This approach guards against errors occurring when document(s)
exchanged exceed email gateway file size limitations.
Change Legal Service MDE operation name from ‘ServeFiling’ to
‘ServeProcess’
An operation
name change is proposed for a couple of reasons. First, a case submission is
not considered ‘filed’ until a reviewing clerk accepts the submission. Second,
‘ServeProcess’ appears consistent with the Limited Electronic Service of
Process (Limited eSOP) concept.
Figure 4: ServeFiling and
ServeProcess operations.
This position paper is published for public review and
approval of one or more of the proposed approaches. The
TC must develop the ECF XML schema and technical specifications for each of the
approved Legal Service MDE enhancement(s) proposed. The specifications will
likely require conversations about modifying the Filing Assembly and Filing
Review MDEs. The final product may include process diagrams, test scripts that
validate business requirements, Use Case and Activity diagrams, and other
artifacts that provide clear traceability to the business requirements
associated with this effort.
The following individuals have participated in the creation
of this specification and are gratefully acknowledged:
·
Jim Cabral, MTG (TC Chair)
·
Robert DeFilippis, OneLegal, President & COO (TC Member)
·
Gary Graham, Arizona Supreme Court (TC Member)
·
Jeff Karotkin, OneLegal, Vice President of Strategic Development
·
George Knecht, Green Filing, LLC (TC Member)
·
Jim Price, Arizona Supreme Court (TC Member)
In consideration of the concept of Limited eSOP it
is important to understand some key e-filing terms, with respect to the ECF
specification, and general court terms. These terms are used throughout this
document.
- ECF – Electronic Court Filing
- EFSP – Electronic Filing Service Provider
- EFM – Electronic Filing Manger
- eSOP – Electronic Service of Process
- FAMDE – Filing Assembly Major Design Element
- FRMDE – Filing Review Major Design Element
- Limited eSOP – Limited Electronic Service of
Process
- LSMDE – Legal Service Major Design Element
In addition to the terms outlined above, it is
important that the reader have a clear understanding of the differences between
service of process and regular service. The following information differentiates
these types of service as primary and secondary, respectively. Where
applicable, the phrase “e-filing opportunity” is included to
highlight under which conditions primary and secondary service may be applied
via electronic filing.
1.
Service of Process (aka Primary
Service)
a. General Description
i.
A type of service whereby a
document is required to be physically delivered to opposing counsel, registered
agent, party, or 3rd party (e.g., witness, victim, entity possessing evidence)
ii.
A person who is served is also
known as a “servee”
iii.
The physical delivery of documents
(typically defined in state statutes, state court rules, and/or local court
rules) often occurs through the use of Process Servers, Sheriff Deputies,
Constables, or by Certified Mail
iv.
Most commonly, Primary Service is
REQUIRED when initiating a case.
v.
Primary Service may also occur
throughout the life of a case when documents (e.g., court-issued summonses and
subpoenas)
b. Service Methods
i.
Proof-of-Service
1. Generally accomplished by filing a “Return of Service”
or “Summons/Subpoena on Return” in the court responsible for hearing the case
2. May include a signed copy of the served documents
3. May be filed in the court by the process server or the
party/attorney who performed the act of service (e-filing opportunity)
ii.
Affidavit of Service
1. Rather than file a signed copy of the documents
served, the Process Server prepares an Affidavit of Service attesting to the
delivery of the documents on to the servee.
2. The Process Server files the Affidavit of Service in
the court responsible for hearing the case (e-filing opportunity)
iii.
Option(s)
1. Electronic Primary Service (e-filing opportunity)
a. Attorneys who serve as “Registered Agents” may elect
(opt-in) to a system by which “Service of Process” may occur electronically
b. Attorneys participating in an ongoing case may elect
to receive service electronically for the service of documents, e.g.,
Subpoenas, Judgments, or Orders
c. Lead counsel
2.
Other – TBD
2.
Regular Service (aka Secondary
Service)
a. A type of service whereby the filing party is required
to provide copies of the pleading they are filing to all other parties and / or
attorneys on the case. The serving counsel or party MUST attest that case
documents were sent to the opposing counsel or party
b. The serving counsel or party MUST file a “Certificate
of Service,” which is the court document that attests that case documents were sent
to the opposing counsel (e-filing opportunity)
c. Proof-of-Service is NOT required; however,
identifying the method of delivery is required as part of the “Certificate of
Service”
d. Several states
i.
Permit the electronic transmission
of case documents to opposing counsel or parties (e-filing opportunity)
if the opposing counsel has agreed to receipt of documents electronically.
ii.
Require counsel or parties to
accept Secondary Service electronically if they filed their case documents
electronically into the court (e-filing opportunity)
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Revision
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Date
|
Editor
|
Changes
Made
|
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0.01
|
04/01/2015
|
Jim Price
|
Document
creation.
|
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0.02
|
07/01/2015
|
George
Knecht
|
Revisions.
|
|
0.03
|
07/06/2015
|
Jim Price
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Accepted
previous revisions. Added edits for review.
|
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0.04
|
07/07/2015
|
George
Knecht
|
Accepted
previous revisions.
|
|
0.05
|
07/07/2015
|
Jim Price
|
Placed
Terms section in Appendix B and removed the same information from the
Introduction section. Modified Recommendation section.
|
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0.6
|
07/09/2015
|
George
Knecht, Jim Price
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Finalized
draft for TC review.
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0.7
|
07/10/2015
|
Robert
DeFilippis
|
Provided
feedback to the initial draft.
|
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0.8
|
07/10/2015
|
Jim Price
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Responded
to Robert DeFilippis and Jim Cabral’s feedback and made edits as necessary.
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0.9
|
08/19/2015
|
Jim Price
|
Modified
objectives in Introduction section and document title based on a consensus
reached between Robert DeFilippis, George Knecht, Jim Cabral, Gary Graham,
and Jim Price.
|
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0.10
|
08/28/2015
|
Jim Price
|
Incorporated
suggested edit to Introduction section made by Jim Cabral. Prepared document
for public review.
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0.11
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08/31/2015
|
Jim Price
|
Incorporated
edits provided by Jim Cabral, George Knecht, and Gary Graham. Introduced Use
Case diagrams for the different proposed approaches.
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0.12
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09/02/2015
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Jim Price
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Modified
Use Case diagrams.
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