Service Through the Internet - Part 3 Chapter 15 - The Practice of International Litigation - 2nd Edition
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
One of the obvious trends in recent years - the use of the internet in all aspects of life - is also easy to observe nowadays in courts in the United States. Courts use computers and, increasingly also the internet, for administrative tasks, case management; cataloguing of court papers and the communication of data, as do persons - attorneys as well as parties - who use the courts. An issue that emerges with respect to such communications, particularly in the context of international litigation, is the extent to which e-mail may be used to effect service of court papers. The federal judiciary is considering allowing service by e-mail of papers other than summonses under Rule 5 of the Federal Rules of Civil Procedure. Meanwhile, one court has entered a default judgment in a case in which a summons was served by electronic mail. The service of papers by e-mail - both to commence an action and at later points in the proceedings - could be of growing importance in international litigation.
Current Infrastructure Developments
Not surprisingly, courts in the United States have been striving to update their technology and increase their communication and case management efficiency by replacing paper with electronic data. In his 1999 Year-End Report on the Federal Judiciary, the Chief Justice reported that “[t]his year, agency staff redesigned the ‘J-Net,’ the Judiciary’s intranet web site, making it easier for judges and court personnel to access time-sensitive and important information. Using the Judiciary’s data communications network, the Administrative Office has begun sending official Administrative Office Correspondence addressed to chief judges and other court executives by electronic mail. This provides for nearly instantaneous communication of important information.” The Chief Justice added, “One of the most significant projects under way is to replace automated systems and technology supporting the current case management systems in the appellate, district, and bankruptcy courts. These systems will have electronic filing capabilities, which will allow a court to receive, store, and retrieve documents in an electronic format, potentially reducing paper volume and enabling easier access to case information.”
In August 1999, the Judicial Conference Committee on Rules of Practice and Procedure (the “Standing Committee’*) circulated for public comment various proposed changes to the Federal Rules of Civil Procedure and the Federal Bankruptcy Rules. Comments are requested to be sent - in writing or electronically - to be received by the Judicial Conferences’ Committee on Rules of Practice and Procedure (“Standing Committee”) by February 15, 2000. Included in the proposed changes, which would become effective no earlier man November 2000, are provisions for the service of some, but not all, types of court papers by electronic means — with the receiving party’s consent. One of the changes would be reflected in an amendment to Rule 5 of the Federal Rules of Civil Procedure, which is concerned with the service of and filing of orders and of pleadings subsequent to the original complaint, in contrast to Rule 4, which deals with the service of the summons and complaint. The amendment, which would change Rule 5(b), would include a provision (to be numbered 5(b)(2)) permitting service under Rule 5(a) to be made by ... (D) Delivering a copy by any other means, including electronic means, consented to by the person served. Service by electronic means is complete ontransmission…..If authorized by local rule, a party may make service under this subparagraph (D) through the court’s transmission facilities.