E-mail service on foreign defendants: time for an international approach?

Author:Stewart, David P.

    As the Internet becomes the predominant vehicle for business communication, solicitation and marketing, plaintiffs' attorneys increasingly face the problem of finding and serving evasive defendants who use the Internet both to violate the law and to shield themselves from suit. These difficulties are compounded when the defendants are located outside the plaintiffs' jurisdiction, especially when they are in a foreign country. Consider this scenario: you represent the owner of a trademarked product sold on your client's website. After a surprising drop in sales, your client becomes aware of a website with a suspiciously similar domain name blatantly violating the trademark and selling a cheaper and inferior product. Your client wants to bring an action to enjoin the defendant from continuing the infringement. The infringing website reveals no contact information except for an e-mail address. You contact the domain registry and find only that an electronic mail ("e-mail") address and a physical address in Pakistan are registered. After further research you discover that the address in Pakistan does not exist. Whom do you serve and how?

    The problem of the evasive defendant traceable only to an e-mail address located abroad has already given rise to a number of decisions by U.S. and foreign courts authorizing e-mail service of process on defendants residing in foreign jurisdictions when no other method of service is available. In a few instances, there have been limited statutory responses. For example, a federal statute dealing with Internet-related offenses specifically allows for e-mail service on defendants that have allegedly violated the statute. (2) On the whole, however, neither U.S. nor foreign law offers a comprehensive approach to the problem.

    Service of process is not the only aspect of litigation affected by rapidly-changing technology and new methods of communication. Electronic case filing has become more and more common, (3) and a new industry has emerged to deal with electronic discovery methods and issues. (4) So far, however, U.S. courts have been left largely on their own in confronting issues of e-mail service. Given the growing importance of the practice, its significant due process implications, and the unique complications that can arise from attempting service in foreign jurisdictions (including jeopardizing the ultimate enforceability of any resulting judgments), a more considered approach is necessary. (5)

    Over the past several years, federal courts in the United States have both authorized and prohibited e-mail service on foreign defendants in varying circumstances. A review of the principal decisions demonstrates that in applying the relevant federal rule, (6) the courts have implicitly adopted a four-factor test when determining whether to authorize e-mail service on a foreign defendant. A remarkable consistency surrounds treatment of the first three factors. Generally, courts appear to favor service by e-mail when the defendant has successfully evaded traditional methods of service and is utilizing e-mail as its preferred or sole method of communication. By the same token, courts have rejected service by e-mail when the plaintiff has not previously attempted to serve the defendant through traditional methods of service before requesting the court to authorize e-mail service. The courts have also been reluctant to authorize e-mail service when they are not satisfied that e-mail is the mode of communication most likely to give the defendant notice of the action.

    Where courts diverge is on what weight, if any, to give to the legality of e-mail service in the foreign country in which the defendant resides. In many countries, service by e-mail, as well as other forms of substituted service, is not recognized as valid service. When authorizing substituted service on a defendant residing in a foreign country, a U.S. judge has a choice of whether to consider if the form of service is recognized by the laws of the country in which the defendant resides. Inevitably, efforts by U.S. parties to effect e-mail service in those countries prohibiting such service will lead to growing confrontation and restrictive responses. The Eleventh and Ninth Circuits have taken sharply different approaches to this issue. (7) District courts have started to take sides on this emerging split, and without clarification (either by domestic rule or statute, or perhaps guidance from the Supreme Court), the divergence will likely result in continuing confusion on an important aspect of international practice.

    A handful of foreign courts in common law countries have permitted service by e-mail, or other forms of substituted service, on both domestic and foreign defendants. In the relatively few reported decisions, courts appear to have relied largely on analytical factors similar to those considered by U.S. courts. Judicial approaches differ as to whether the law of the country in which the defendant resides should or must be considered by the judge authorizing service. An international standard for e-mail service on a foreign defendant drawing on the similarities across judicial approaches might well go far towards preventing the inevitable quagmire of transnational judge-made law that will likely result in the absence of an agreed approach.

    Scholars and practitioners have acknowledged the need for some measure of international response by repeatedly calling for integration of changing technologies into the established framework for international service of process. The 1965 Hague Convention on the Service of Judicial and Extra-Judicial Documents in Civil or Commercial Matters ("Hague Service Convention") (8) provides for internationally agreed methods of transmitting requests for service on defendants in States Parties to the Convention. The Convention does not, by its terms, address electronic means of service of process, and in fact provides that service must be accomplished by a method prescribed by the internal law of the receiving country for the service of documents in domestic actions upon persons who are within its territory. (9) The Hague Service Convention explicitly does not apply where the address of the person being served is not known, (10) which is precisely the kind of situation in which U.S. courts have authorized e-mail service. In our view, therefore, the Convention itself does not clearly resolve the issue of e-mail service. (11)

    This article explores various possibilities for resolving the issues posed by e-mail service of process on foreign defendants. The next part analyzes Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 4(f)(3) and the accompanying advisory committee note to determine the current parameters within which U.S. courts must address the issues under the federal rules. In Part III, we discuss common threads in current U.S. case law dealing with e-mail service on foreign defendants under those rules, including (1) the plaintiff's prior attempts to serve the defendant through traditional methods, (2) whether e-mail is the defendant's preferred or sole method of communication, (3) the perceived evasiveness of the defendant, and (4) considerations of the law of the foreign country in which the defendant resides.

    We also look at the emerging decisional law in several other common law countries and conclude that foreign judges generally consider the same set of factors that U.S. judges have utilized. Part IV discusses the extent to which Rule 4(f)(3) has been or should be interpreted to require a court to take into account the legality of e-mail service under foreign law. Part V analyzes the civil procedure rules and case law of England, Australia and Canada with respect to e-mail service, and substituted service generally, on foreign defendants. We conclude that judges in those countries look at the same issues of prior attempts, evasion, and actual notice when determining whether to authorize e-mail service, and generally have heightened deference to foreign law. Part VI looks briefly at several other issues relevant to e-mail service, including due process concerns, judgment enforcement issues, and difficulties in determining the state in which an evasive defendant resides.

    Part VII considers several possible solutions to the problem, including amending the federal rules, re-interpreting the Hague Service Convention to accommodate requests for e-mail service abroad, and adopting a new instrument dealing directly with e-mail service directly on defendants. We conclude that the essential factors used by courts here and abroad in determining whether to authorize e-mail service on foreign defendants could readily provide the basis for a new international legal standard governing the practice. Incorporating those factors into the federal rules would assist U.S. courts in ruling on requests, but could not overcome foreign objections. Re-interpreting the Hague Service Convention to incorporate those standards and permit use of Convention channels for e-mail service, while superficially attractive, might cause more problems than it would solve. Negotiating a new instrument, such as a protocol to the Convention, although likely to be controversial, might well be the most effective way to gain international concurrence on how to deal with the issues posed by e-mail service on foreign defendants.

    Whatever approach is taken, it should promote several important goals. It should explicitly recognize and endorse the growing, even pervasive, use of electronic means of communication, in particular e-mail service. It should satisfy due process concerns by providing a reasonable assurance of giving the defendant actual notice of the pending suit. It should enhance (rather than diminish) the prospects that the resulting judgment will be recognized and enforced. Finally, it should reflect due regard for the applicable law in the forum where service is effected. These, we...

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