EService Process Descriptions. COSCA/NACM Standards for Electronic Filing Processes Technical and...

eService Process Descriptions

COSCA/NACM Standards for Electronic Filing Processes Technical and Business Approaches

Section 1.2A Court rules may provide that electronic transmission of a document through the electronic filing process to opposing counsel or parties who participate in the electronic filing process will satisfy the service requirements of court procedural rules. Such electronic filing processes will automatically create and docket a certificate of service for documents served electronically through the electronic filing process.

Other Standards and Commentary

• Functional standard 3.14.1 states that the court will provide “documents and notice to other parties,” in accordance with statutes and rules

• eService is provided at the time of filing, not at the time of acceptance of the filing into the court’s data base

• It is only a matter of time before electronic service of process is deemed sufficient to establish a court’s jurisdiction over a party

Categories of Service

• “Primary Service” refers to service of summonses, subpoenas and warrants that establish the court’s jurisdiction over the persons or entities served

• “Secondary Service” refers to service of documents filed or to be filed in court by a party, or documents created by the court, on all parties and interested persons entitled to notice of filings and activities

International Primary Service Practice

• Interestingly, many other nations require service to be performed by an officer of the court and will not honor US default judgments because of their reliance on service performed by persons other than court staff

Registries

• Some states maintain a central, statewide registry of persons opting to participate in electronic filing; those registries may, or may not, include userIDs, passwords, digital signatures, and IP addresses of participants.

• Individual courts may maintain such registries for their own eUsers.

• Courts using efiling vendors may rely on the vendor to maintain such registries.

• Courts and states that mandate use of efiling must still maintain a registry of eUsers.

• Some states and courts use digital signature certificate authorities – a different form of registry.

Interested Persons

• In many types of proceedings, court rules provide that “interested persons” may request copies of all filings, notices and orders in a case.

• The following process diagrams include such “interested persons” within the designation of “parties” because they are identified by the court’s case management information system and otherwise handled the same way as parties during the process

Parties/Lawyers

• In each of the processes descriptions, parties and their lawyers are treated as a single entity for purposes of simplification

• If a party is represented by counsel, all communications on the party’s behalf are conducted by the party’s lawyer

• If a party is not represented, all communications are conducted by the party.

eFiling Vendor

• The term “vendor” is used to refer to an eFiling vendor, traditionally called an Electronic Filing Service Provider

• The functions performed by a “vendor” in the course of electronic service are no different from those performed during routine two-way eFiling transactions

CourtFilingParty

Party B

Party C

Party D

SECONDARY SERVICE PROCESS – PAPER

Business RulesCertificate of service merely recites the method of service used, the date, and the address used for the recipientCertificate of Service recites that service has been effected on a specific date but without a specific timeThe serving lawyer merely recites the actions taken to send or deliver the document. No mention is required, nor made, concerning receipt of the served document

Process VariationLawyer may deliver a copy to the office of the opposing lawyer, in which case the opposing lawyer gets three fewer days within which to respond to the matter

Subsequent Filing with Certificate ofService

Paper copy, usually By Mail



CourtFilingParty

Party B

Party C

Party D

2 Notice of Filing

2 Notice of Filing

COURT CONDUCTED eSERVICE PROCESS FOR SECONDARY SERVICE OF FILING BY A PARTY

Business RulesNotice of Filing does not represent that filing has been accepted by court for filingCourt will use party’s last known efiling addressParty has obligation to inform court of change of efiling addressCourt provides filer with a list of parties who are not participating in the court’s electronic filing process so that filer can serve them through traditional meansCourt’s confidentiality requirements must be implementedConfirmation of receipt of notice of filing is not generally required, but could be at some level

Process VariationsCourt may or may not include copy of filing with the noticeIf court does not include a copy of the filing with the notice, it must allow the party to access the document electronically in the court’s public access data baseSome courts mirror the paper process by placing a copy of the filing in an electronic mailbox maintained on the court’s server, with parties having the responsibility to check its mailbox and retrieve filingsThe diagram includes an optional step of contacting an external repository for address or other information

CMS

2 or 3 Certificate ofService

2 Acknowledgement of filing with notice of parties who must be served by filer

3 Receipt confirmation



1 Subsequent filing2 Notice of Filing

Registry

1b Requestfor informationfromregistry

1b Registryresponse

CourtParty A

Party B

Party C

Party D

2 Notice of Filing

2 Notice of Filing

COURT CONDUCTED eSERVICE PROCESS FOR SECONDARY SERVICE OF DOCUMENT CREATED BY THE COURT

Business RulesCourt will use party’s last known efiling addressParty has obligation to inform court of change of efiling addressCourt provides paper service on parties who are not participating in the court’s electronic filing process so that filer can serve them through traditional meansCourt’s confidentiality requirements must be implementedConfirmation of receipt of notice of filing is not generally required, but could be at some level

Process VariationsCourt may or may not include copy of filing with the noticeIf court does not include a copy of the filing with the notice, it must allow the party to access the document electronically in the court’s public access data baseSome courts mirror the paper process by placing a copy of the filing in an electronic mailbox maintained on the court’s server, with parties having the responsibility to check its mailbox and retrieve filingsA registry may be involved in this process

CMS





2 Notice of Filing2 Notice of Filing


CourtFilingParty

Party B

Party C

Party D

Vendor

Vendor

2 Notice of Filing

2 Notice of Filing

COURT CONDUCTED eSERVICE PROCESS FOR SECONDARY SERVICE BY COURT THAT ACCEPTS FILINGS BY VENDORS ON BEHALF OF PARTIES

Business RulesNotice of Filing does not represent that filing has been accepted by court for filingCourt will use party’s last known efiling addressParty has obligation to inform court of change of efiling addressCourt provides filer with a list of parties who are not participating in the court’s electronic filing process so that filer can serve them through traditional meansCourt’s confidentiality requirements must be implementedConfirmation of receipt of notice of filing is not generally required, but could be at some level

Process VariationsCourt may or may not include copy of filing with the noticeIf court does not include a copy of the filing with the notice, it must allow the party to access the document electronically in the court’s public access data baseA registry may be involved in this process

CMS


2Acknowledgement

of filing with notice of parties who must be served by filer




1 Subsequent filing1

2

2

32

CourtFilingParty

Party B

Party C

Party D

Vendor 1

Vendor 2

3 Notice of Filing

3 Notice of Filing

VENDOR CONDUCTED eSERVICE PROCESS FOR SECONDARY SERVICE

Business RulesCourt uses Vendor 1 to perform all of its secondary serviceCourt allows Vendor 2 to submit efilings on behalf of partiesIf vendor is the court’s exclusive efiling vendor, the vendor already has all efiling addressesIf vendor is not the court’s exclusive efiling vendor, the court provides all efiling addressesOther business rules from Court Conducted eService Process also apply

Process VariationsVendor may or may not include copy of filing with the noticeIf vendor does not include a copy of the filing with the notice, it must allow the party to access the document electronically in the vendor’s public access data baseA registry may be involved in the process

CMS

5 Certificate ofService

2Acknowledgement of filing




1 Subsequent filing1

3

3

2 Instructions from courtto perform eServicetogether with list of partiesand their IP addresses, if any

5 Certificate ofservice


2Acknowledgement of filing with notice of partieswho must be served by filer

CourtSubmitting

Party

Party B

Party C

Party D

Vendor

1 Document submission

eSERVICE PROCESS FOR DOCUMENT DELIVERY THAT DOES NOT CONCERN THE COURT

Business RulesAttorney desires to provide a copy of a document to another attorney or to the attorney’s client, either because it is required by court rule (e.g., compliance with discovery or disclosure require- ment) or for the attorney’s own convenience and cost savingsIt is not clear what level of receipt confirmation is possible or should be required

Process VariationAn attorney may delivery a document to another attorney or party directly or through the services of an efiling vendorA registry may be involved in the process




1

1


1 Document submission

CourtFilingParty

PrivateProcessServer

Party B

LawEnforcement

PRIMARY SERVICE PROCESS – PAPER

Business RulesFiling party chooses either law enforcement or a private process server to effect service, not bothPerson effecting service completes the return of service; the party served does not sign or otherwise participate in the completion of that documentSubpoenas may be prepared by parties in most states but are served as shownWarrants are prepared by courts and provided directly by them to a law enforcement agency

Process VariationsIf law enforcement or process server is unable to effect personal service, other alternatives, such as service by posting, by publication, or by special means may be pursued by the party These alternatives are prescribed by law in each stateSome states provide for service by consent, in which case the served party prepares and files a document accepting service and waiving other formal service requirements

1 Initiating Filing

3 Paper copy, by mail or by hand

4 Summons and initiating filingdelivered by hand

2 Summons prepared by courtmailed to party or delivered by hand

3 Paper copy, by mail or by hand


5 Return of serviceprepared and filedby process server

5 Return of serviceprepared and filedby law enforcementofficer

5 Courtesy copy tofiling party

5 Courtesy copy tofiling party

CourtFilingParty

PrivateProcessServer

Party B

LawEnforcement

PRIMARY SERVICE PROCESS – MIRRORING PAPER PROCESS BUT USING ELECTRONIC TRANSMISSON

Business RulesFiling party chooses either law enforcement or a private process server to effect service, not bothPerson effecting service completes the return of service; the party served does not sign or otherwise participate in the completion of that documentSubpoenas would follow steps 3, 4 and 5Warrants would be provided electronically by the court directly to the law enforcement agency

Process VariationsIf law enforcement or process server is unable to effect personal service, other alternatives, such as service by posting, by publication, or by special means may be pursued by the party. These alternatives are prescribed by law in each state.Some states provide for service by consent, in which case the served party prepares and files a document accepting service and waiving other formal service requirementsA registry may be involved in this process

1 Initiating Filing efiled

3 Summons and initiating filing sent to process server electronically


2 Summons prepared by courtand sent to party electronically

3 Summons and initiating filing sent to law enforcement electronically


5 Return of serviceprepared and filedelectronically by process server

5 Return of serviceprepared and filedelectronically by law enforcementofficer

5 Courtesy copy tofiling party sentelectronically

5 Courtesy copy tofiling party sentelectronically

COURT CONDUCTED eSERVICE PROCESS FOR PRIMARY SERVICE OF SUMMONS

CourtVendor

Law Enforcement

eProcess Server

FilingParty

1 Initiating Pleading

Party B

Party D

Party C

2 Summons and Initiating Pleading

2 Summons and Initiating Pleading

5 ElectronicReturn of Service

5 ElectronicReturn of Service

3 Personal service ofprinted documents

3 Personal service of printed documents

3 eService onregistered agent of corporation or otherstate-authorizedbusiness entity

Business RulesFiler designates process server as part of the process of filing the initiating pleadingCourt bears no responsibility for service of process, merely for providing documents electronically to the process serverThe requirements for step 4 have not been defined, although the ABA Section of Science and Technology Electronic Filing Committee is developing proposed requirements

Process VariationsFiler may effect service in traditional manner by hand delivering summons and initiating pleading to sheriff or private process server, who then files written or electronic return of service with the court

Subpoenas could be served using the entire model, or could follow steps 3, 4, and 5 of the previous processWarrants would be served using the law enforcement componentA registry may be involved in this process

2 Notice of issuanceof summons

4 Electronic Confirmation

1

2

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