E-service of process is a method of serving Complaints or other legal initiating papers on defendants via email, text messaging, or social media account direct messaging. E-service — electronic service of process — is generally only allowed by a court’s Order, is generally a sort of “last resort” type of service of process, is becoming increasingly permitted, and may eventually overtake “service of process by publication or posting” as the final method used by courts to obtain service of process on defendants who are refusing or evading service of process.
Note that E-service is for service of process and is distinct from the electronic service of court papers between litigants after a case has been filed. Service of process is the means by which a defendant — a party being sued — is given notice of the lawsuit (or other proceeding). Proper service of process — notification of the lawsuit/proceeding — is required by due process. Electronic filing of court documents between lawyers in a case is something different and should not be confused with e-service of process.
Generally, service of process is done via some sort of hand-delivery of the initiating court papers — like a Summons and Complaint. In most U.S. jurisdictions, there is a progressive series of steps that can or must be taken to obtain a legally valid service of process. Those are (generally):
● A county Sheriff Deputy or other law enforcement official attempts to hand-deliver the Summons and Complaint
● If the Sheriff’s Deputy is unsuccessful, then a person is appointed as a “special process server” to hand-deliver the court papers
● If several attempts by the special process server are unsuccessful, then a court can allow service of process via U.S. Mail or overnight delivery with return receipt and proof of delivery
● If that does not succeed, then the court might allow service of process via publication in a newspaper and via posting at the County Courthouse
In some jurisdictions, the first two methods are combined or are allowed as alternatives. The final two are only allowed, typically, by court Order and if there is sufficient proof that the other methods were attempted, but failed.
Now, another method is being allowed — E-service of process via email, text messaging, or direct messaging to public social media accounts. Again, for now, a court’s Order is necessary for the use of this type of service of process and some additional requirements are likely to be imposed. The Supreme Court of Illinois recently amended its Rules to allow e-service of process. Those rules are instructive with respect to what most U.S. courts will require. First, to be allowed to use e-service of process, the party bringing the lawsuit — the plaintiff — must provide evidence that the defendant is actively and currently using the relevant email account, phone/text number or social media account. Second, the relevant court documents must be attached. Further, in the subject line of an email or in the body of a text, the following words must be placed: “Important information—You are being sued” and also the following sentences:
“You have been sued. Read all of the documents attached to this e-mail [text or direct message]. To participate in the case, you must follow the instructions listed in the attached summons. If you do not, the court may decide the case without hearing from you, and you could lose the case.”
Finally, copies of the relevant court documents must be sent – within 10 days of the email, text or direct message – via mail to the last-known address of the defendant.