April 2004

Bigger than E-filing: E-service

E-service is the electronic exchange of litigation documents where the parties have agreed that the electronic exchange constitutes official service in the case.

by Scott Wetzel

The September 2003 Bar News contained two noteworthy articles about electronic filing: "Justice at Web Speed" (p. 22, or see www.wsba.org/media/publications/barnews/2003/sept-03-clarke.htm), and "Plans for Electronic Filing in King County" (p. 26, or see www.wsba.org/media/publications/barnews/2003/sept-03-sherfey.htm). Both articles rightly recognized the convenience, cost savings, and efficiencies that result from filing documents electronically with courts. But as the first article notes: "Although the ability to electronically file anytime and anywhere is useful and potentially saves money, lawyers often report that the really attractive feature of e-filing is electronic service." (Emphasis added.) Let's take a look at some of the benefits of electronic service; survey the vendors who provide electronic-service products; look at a few examples of firms who are already enjoying e-service; and learn how Washington law firms can enjoy the benefits of electronic service immediately.

What is e-service?
Broadly stated, e-service is nothing more than the electronic exchange of litigation documents where the parties have agreed that the electronic exchange constitutes official service in the case. Typically, e-service is done via web-based software tools that build the electronic case docket in real time. The court can be (but is not necessarily) involved. A stipulation between the parties stating that electronic service is official service is usually all that it takes to begin e-service in a case.

Newly adopted GR 30, which became effective on September 1, 2003, authorizes e-filing and e-service in Washington state. (See www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga&set=GR&ruleid=gagr30.) While GR 30 deals mostly with the details of electronic filing, it authorizes electronic service as well. See GR 30.2(d), which reads "Electronic Service By Parties. Parties may electronically serve documents on other parties of record only by agreement."3

Why should Washington lawyers care about e-service?4 First, visualize the workflow involved in serving litigation documents in the paper world, and then imagine doing the same process electronically over the web. Instead of printing pleadings, making copies, addressing and stuffing envelopes, suffering paper cuts, and licking envelopes, and then paying postage or courier fees, you serve documents on the parties by clicking a button and paying a transaction fee. The law firm's original word processing documents are automatically converted to PDFs, uploaded to a secure document repository, and the parties are notified that service of documents has occurred.

Why not e-mail for e-service?
Speaking of e-mail, why not simply use e-mail to effect online service? In basic e-service applications — for example, the federal court's "CM/ECF" (case management/electronic case filing) system — notification of service arrives via e-mail. The more robust, commercial e-service applications allow the user to select whether the e-mail notification comes with a link to the document, with the document sent as an attachment, or by no e-mail notification at all (in which case you'd go into the application's e-service "inbox").

There are a number of advantages that e-service applications have over e-mail. First, they're secure and web-based, rather than insecure, virus-prone, hacker-susceptible, and e-mail based. Beyond that, e-service applications are organized. Sure, you can set up e-mail "rules" so that mail from so-and-so gets stuck in such-and-such a folder, but this requires time, energy, and maintenance. Unlike e-mail, robust commercial e-service applications organize documents into an online case file — an electronic filing cabinet, if you will — that is sortable and searchable. E-service applications use a common file format (PDF), are available anytime and any place you have connectivity, come with built-in virus protection, and are not subject to document size limits (well, this doesn't include the federal CM/ECF system, which has a two-megabyte size limit, but that's another story). Yet another strength of e-service programs is that they come with built-in, no- or low-maintenance service lists, and the online case file or online "docket" is indexed to allow searching on lots and lots of different fields.

What does e-service cost?
The economic benefits of e-service are compelling. In federal court cases filed in jurisdictions that have adopted the CM/ECF system designed by the Administrative Office of the U.S. Courts in Washington, D.C., the litigants consent to electronic service and serve documents on the parties without any charge at all. (There is a $.07 per-page fee to view documents after your one "free view.") Private e-service vendors, whose products are generally used in state courts, charge a flat transaction fee that allows a party to serve pleadings (with exhibits and attachments and no page limit) upon the parties.

The costs of using traditional (paper) service are not insignificant. (See the charts on page 29.) Eliminating the cost of copying, mailing, organizing, and storing paper documents makes inherent sense, even in small cases.

The numbers don't lie
In certain types of cases, e-service provides dramatic cost savings to firms. This is particularly true in complex litigation and mass-tort actions. According to Rob Haegele, a paralegal at Seattle's Hagens Berman: "We are frequently involved in litigation where the service list is as long as your arm. For example, we represent the plaintiffs in a drug-pricing action. It would cost us literally hundreds of thousands of dollars annually to serve the parties using traditional (paper) means. E-service allows us to serve all of the parties at a small fraction of that cost."

For many lawyers, it is the online document repository that is the single biggest virtue of e-service systems. When pleadings are served using any of the commercial e-service products, the online case docket is created in real time and acts like an electronic filing cabinet. Houston lawyer Ryan Beason, who acts as defense counsel for a number of silica defendants in silicosis litigation in the Lone Star State, says: "I enjoy having all of my case documents available to me wherever I have connectivity. Electronic service provides an extremely cost-effective method of getting litigation documents to all of the parties, but what I like best is not being tied to the files in my office. I enjoy having anywhere-anytime access to a virtual filing cabinet that contains all of the documents filed in my complex litigation cases."

Mass torts = mass service lists = mass adoption
It has been mass-tort litigation that has driven the early adoption of e-service products. For example, in Middlesex County, New Jersey's mass-tort capital, diet pills, tobacco, breast implants, HIV-infected blood, fire-retardant-treated plywood, asbestos, latex, the diabetes drug Rezulin, and the cold-medicine and diet-pill additive phenylpropanolamine have all been designated mass torts and transferred to Judge Marina Corodemus. In some of these actions, a small Pennsylvania e-service company called Verilaw provides electronic service. Verilaw's product "vServe" was among the earliest e-service applications developed. vServe is generally well regarded and competitive in the marketplace.

The big players in the industry are paying attention. Also among the early developers of an e-service product is the Bellevue, Washington-based e-filing business unit of LexisNexis. LexisNexis, of course, is well known as a leading provider of online legal and business research. The company's e-filing and e-service product, "LexisNexis File & Serve," is believed to be the most widely used commercial e-filing product in the business. At last report, File & Serve was used by more than 27,000 registered users in 5,200 firms with approximately 236,000 cases online in around 140 courts in nine states and the District of Columbia.

File & Serve has shown that it is not only complex litigation and mass-tort actions that benefit from electronic service. In Colorado, Delaware, and Texas, File & Serve has been implemented statewide in virtually every type of case class, from adoption cases to probate matters. Colorado law firms have this to say:

"Can you believe that six months ago we did this on paper?" — legal secretary at White & Steele

"I can't believe how much I can get done during the day now that I don't stand in line for the copy machine." — Karline Van Pelt, paralegal at Denver's Rothgerber Johnson & Lyons

"The fee agreements with my clients specify what they will or will not pay for. Copies are often considered an overhead expense or are chargeable to the client at a flat fee per page. LNFS saves the attorneys and/or the clients a great deal of copy expense." — Clayton Russell, attorney at Denver's Wood Ris & Hames

"It's so great that the other side can't 'claim' to have not been served, or my attorney can't accuse me of missing a service recipient. I have instant proof that I did what I was supposed to do." — Anonymous paralegal

"Civil" litigation? Unheard of!
One of the strange side effects of e-service is that civil litigation becomes more, well, civil. E-service increases control and reduces uncertainty over the service of litigation documents. Practitioners have noticed that with the immediate delivery and immediate proof of delivery, there are fewer discovery squabbles to the tune of "I wasn't served!" and fewer phone calls regarding "Did you send?" and "Did you receive?" (Judges have never enjoyed these type of discovery disputes, either.) Lawyers also remark that since there is less of a rush to finish documents to fit the constraints of the paper world (think copying, stuffing, addressing, and postal and courier schedules again), they have more time to prepare documents. This makes for a higher-quality work product and increased control over the service process.

What's it going to take for me to get going?
The hardware requirements of e-service applications are fairly minimal. A firm needs a computer, web connection, and scanner to digitize documents and exhibits that were not created electronically. Depending on the e-service system you use, you may need software that converts your word-processing documents to the PDF format (most of the mainstream e-service systems automatically convert word-processing documents to PDFs, the only exception being the federal CM/ECF system) .

If your firm is involved in litigation of any size, you may want to consider e-service of litigation documents. Look for one case that could be a pilot for your firm, and assign an attorney in your firm to take the lead on investigating online service options. Pick a case with reasonable attorneys (under GR 30, you must agree to e-service). The point is that litigants need not wait for courts to slowly adopt e-filing and e-service tools on a one-by-one, patchwork basis; the technology is here now.

I believe the increased control and reduced uncertainty that e-service delivers — not to mention the convenience, cost savings, and efficiency of having all of a case's litigation documents at your fingers — will in coming years be a tool about which we will ask "How did we ever get along without it?"

________________________

Scott Wetzel practiced law in Seattle from 1983 to 1988 and founded CD Law, Inc., a Seattle-based online legal publishing company, in 1989. He is now the director of new business development in the Bellevue offices of LexisNexis CourtLink. His current focus is on e-service projects.

For more information about the products discussed, see www.verilaw.com, www.lexisnexis.com/fileandserve, and http://pacer.psc.uscourts.gov/cmecf/; or e-mail Scott Wetzel at scott.wetzel@lexisnexis.com.

NOTES
1 The first two charts estimate that it costs $5.16 to serve one party, $6.42 to serve 10 parties, $17.82 to serve 50 parties, etc.  The costs of paper, envelopes, labels, first-class postage, labor at $25 / hour, and serving the court with one copy are included.

2 The third chart assumes a flat rate of $12 per transaction for e-service. For this flat fee, a litigant can serve all of the other parties, regardless of the page length of the document, the number of firms served, or the number of recipients within each firm.

3 Interestingly, the rule as proposed reads:  "Parties may electronically serve documents on other parties of record only by agreement or order of the court."  According to a representative of the Judicial Information System Committee (http://www.courts.wa.gov/committee?fa=committee.home&committee_id=74), which promulgated the rule, the deletion of "or order of the court" was made at the insistence of some attorney groups who were uncomfortable with the possibility of the court's ordering them to electronically serve other parties when both parties weren't in agreement.

4 We should be careful to distinguish between original service under CR 4 — the act that commences an action and establishes jurisdiction over a defendant — and service of all subsequent pleadings under CR 5.  To my knowledge, no jurisdiction has yet authorized electronic original service of process.  Electronic service of pleadings under CR 5 and its counterparts is becoming commonplace in some parts of the country.

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