The “computerization” of the practice of law has brought speed and efficiency to serving documents, but attorneys must weigh the pros and cons of several methods of service. Choosing the wrong method can result in ethics violations, incurring significant unplanned IT expenses, and challenges for storing and organizing case information. This article focuses on three options available for service: US Mail, email, and private eService vendors. Two perspectives on each method will be addressed: The advantages and disadvantages, for each method, for the transmittal of service, as well as for the storage of served documents.
For many years, the use of US mail was the only available service option. Printing documents, stuffing envelopes, and transporting boxes or envelopes to the post office are still a reality for some. Small cases, especially with a short lifespan, are still suited for paper service, but for large litigations, like class action, mass tort, and federal MDL’s, the costs associated with using US mail for serving case documents are generally prohibitive. The point at which a case becomes “large” enough to rule out service on paper is not always easy to determine since cases which start “small” can quickly grow in terms of the number of parties and the frequency of service. Assuming paper service makes sense for any given case, storage and organization of paper files have long been the bane of attorneys. At what point does organizing and storing bulky paper files represent a drawback that outweighs any advantages, not to mention their “accessibility”?
What about using email to serve documents? As the internet grew, the use of email for serving case documents seemed a logical choice to replace paper service. The perceived advantage of using email was obvious – it was free! Unfortunately, as email increased in popularity the risks of using this method of service also increased. The overwhelming number of marketing emails, for example, has given rise to spam filters, junk mail filters, blacklists and other programs to intercept unwanted messages. The danger that an email containing served documents could be inadvertently blocked is not unrealistic. Hacking, viruses, phishing, and the like have created additional causes for worry.
Ethics rules governing client confidentiality cannot be ignored, and attorneys transmitting confidential client information as an email attachment are risking a violation. Some attorneys have learned the hard way that a breach of client confidentiality because of intercepted emails, or by simply sending to an incorrect email address, can result in sanctions. Using encrypted email and software safeguards may provide assistance with transmitting service documents, but do not address another question: What about keeping served documents stored, organized, secure and accessible? Additional resources are required, some at significant expense, to set up secure document storage which is accessible only to appropriate personnel. Attorneys are forced to either create in-house departments or take on the task themselves, both of which require time better spent with clients and resources difficult to budget for.
For purposes of document storage, what about file sharing services? They have become popular for internal file sharing and some have stretched their utility to include file sharing among parties to the litigation. Such a decision should not be taken lightly, and here are a few questions to ask about your favorite file-sharing service before deciding: Was the service designed for litigation? Are email notifications automatically sent to served parties when case documents are uploaded? How secure are email links to documents? Are the contents of the database truly secure or are third-party services housing your data? Does the database employ redundancies for backup protection? Does the service assign tracking numbers to each transaction? What kind of client support is offered, and does it include toll-free 24x7x365 telephone support along with live-chat, or do these merely transfer clients to a sales rep?
Finally, an option sometimes overlooked by attorneys is the third-party vendor. The workflow is relatively simple and, for appropriate cases, seems to address risks and drawbacks inherent in paper and email service. Using the services of an “electronic service provider”, or ESP requires only that the parties upload documents to be served to a “document repository”, after which the vendor’s system generates email notifications of service to parties served. The served party logs in to the vendor site to read, print or download served documents.
Costs associated with using an ESP are nominal and are spelled out in advance. Since this option is an “eService” method, US Mail service, and the associated labor, paper and postage costs are no longer factors. Storing boxes of documents is also eliminated since they are stored electronically by the vendor on a secure website. Issues associated with email service are no longer a cause for concern since only the vendor’s email address is sending notifications of service to all parties and served documents are not sent as attachments. Parties have no need to weed through multiple emails to identify service from parties in their cases, and since the vendor stores all served documents electronically the challenges of organizing and storing case documents attached to those emails is also addressed. If the ESP option is chosen, the next step should be to obtain a consensus among the parties and the court. Stipulations and Case Management Orders templates are available from the ESP vendors and can be circulated among the parties or submitted to the court for approval.
When to pick which option? Both document transmittal and document storage factors must be addressed to make an informed decision. What kind of case is being considered, how long it will take to resolve, how many parties are involved, how “document intensive” will the case be, and how sensitive are the documents which will be served? Clearly, as the “size” of the case increases, based on the above factors, the appeal of using an ESP also increases. Do your research and remember there is no cost or obligation to speak with a vendor about their services and support.
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