Posted by Eugene Volokh:
Process Service by E-Mail:
http://volokh.com/archives/archive_2008_05_04-2008_05_10.shtml#1210268085
A [1]Snyder v. Alternate Energy Inc., a New York City Civil Court
decision from last month, allows this in certain circumstances, and
canvasses past opinions on the subject. It then analyzes things this
way:
[S]o long as Nelson's physical whereabouts remain a secret,
reaching him and his company by ordinary means remains every bit as
difficult as reaching the defendant in Hollow v. Hollow [an earlier
New York state case -EV]. For the plaintiffs here, like the
plaintiff in Hollow, the internet may very well offer the best hope
they have of ever being able to reach the defendants Nelson and
Corporate Energy.
The problem with the internet is that it is hard to be absolutely
sure that the message is actually received by the person it is
intended to reach. Despite the information plaintiffs' counsel has
supplied tying defendant Nelson to e-mail address
[EMAIL PROTECTED], there is still the chance, however slight, that
the address belongs to someone who for some unknown reason is
merely pretending to be Nelson. And even if the address is indeed
Nelson's, then at any given time some other person say, a friend,
family member or co-worker may be the one using the address and
thus end up intercepting the message being sent to Nelson.
Concerns about the uncertainty of an e-mailed summons and complaint
making its way across the internet to its intended target is reason
to proceed with caution when being asked to authorize e-mail
service. But such concerns are not reason enough to summarily
reject an application for alternate service simply because the
method sought involves e-mail. Strange as it may sound, the
validity of a particular form of service is not necessarily
dependent on the likelihood of receipt. As the court of Appeals
wrote in Dobkin, "Our law has long been comfortable with many
situations in which it is evident, as a practical matter, that
parties to whom notice was ostensibly addressed would never in fact
receive it." Dobkin v. Chapman, 21 NY2d at 502.
([2]Show the rest of the text.)
A prime example of a type of alternate service that is almost
certain not to provide actual notice to a defendant turns out to be
one of the most frequently used. This is service by publication.
Buried in small type in the back pages of a newspaper, legal
notices may very well be some of the least read prose ever
composed. It is clearly no secret that the chances of a defendant
leafing through the New York Law Journal or the Village Voice and
happening upon a summons intended for him or her are remote at
best. A recent article in the New York Times highlighted the
futility of publication service; the article was pointedly entitled
"How to Tell Someone She's Being Sued, Without Really Telling Her."
Unlike publication, service by e-mail at least offers a chance of
providing actual notice to a defendant of a pending lawsuit. Of
course, the mere fact that a defendant has a computer and an e-mail
address is not a basis to allow a plaintiff to resort to e-mail
service. In this case, however, plaintiffs have shown that
defendant Nelson is regularly online using an e-mail address that
by all indications is his. Under these particular facts, a court
could readily conclude that service by e-mail is "reasonably
calculated, under all the circumstances, to apprise the defendants
of the action brought against them." Dobkin v. Chapman, 21 NY2d at
505, quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
at 314. Accordingly, I determined that service of the summons and
complaint on defendants by e-mail was an appropriate form of
service....
To better insure the effectiveness of the notice to defendants, the
order imposed some additional requirements.
The first of these additional requirements was that the e-mail be
sent on two consecutive dates and that it bear a prominent subject
line indicating that what was being sent were legal papers in an
attachment that was to be opened immediately. This was done to
increase the chance that the transmittal would be brought to
defendant Nelson's immediate attention and not inadvertently left
unopened, deleted or read by somebody else and forgotten.
Another requirement was that the summons and complaint be mailed to
defendants' last known New York and Connecticut addresses. Although
this was probably an exercise in futility, it was nevertheless
worth having plaintiffs spend the postage on the offhand chance
that defendant Nelson had recently provided the postal service with
forwarding information for him and his company.
The last requirement involved the cellular telephone number that
plaintiffs had for defendant Nelson. Plaintiffs' counsel was
directed to contact Nelson at that number and inform him that the
summons and complaint were being sent by e-mail and regular mail.
While it is unusual to advise a defendant in advance of impending
service, alternate service is by its very definition a departure
from the usual. As with the other requirements imposed by the
order, the goal was to improve the odds that defendants would
actually be aware they were being sued. Although e-mail would be
the primary form of notice, a hybrid approach including mail and
phone notice could only serve to heighten that awareness.
([3]Hide much of the above text.)
References
1. http://www.nycourts.gov/reporter/3dseries/2008/2008_28137.htm
2. file://localhost/var/www/powerblogs/volokh/posts/1210268085.html
3. file://localhost/var/www/powerblogs/volokh/posts/1210268085.html
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