Comments on: Data In Motion: Transatlantic Service of Process in the Age of Cloud Computing

By: Case of the Day: Luxottica Group v. Partnerships and Unincorporated Associations | Letters Blogatory

Mon, 11 Nov 2024 03:09:04 +0000

[…] There is one other interesting point raised by the case, though the judge didn’t discuss it. One of the forms of service authorized was service by publication of the summons and complaint on a website, to which the defendants’ seized domain names were to be redirected. That is, suppose the defendants owned the knockoffs.com domain name and were using it to sell knockoffs of the Luxottica brand. At the outset of the case, Luxottica would receive an order from the court requiring the domain name registrar to give control of the knockoffs.com domain name to Luxottica. Luxottica could then publish new DNS records, so that when a user visited knockoffs.com, he or she would see the summons and complaint. Does the Convention apply to this form of service? The question is whether the service involves transmission of a judicial document abroad for service. of course, the plaintiff wants the document to be read in China, but it is simply publishing the document on a web server—suppose it is a web server located in the United States. The defendant types “knockoffs.com” into his web browser and then retrieves the document from the US-based web server. Has the plaintiff transmitted hte doucment to China? Of course, the same issue can arise in the case of email, since a defendant anywhere in the world who does not host his or her own email server might retrieve his or her email from a US-based server via the IMAP protocol. But at least in the case of email there is a very clear functional analogy to the postal channel. The closest analogy to service by publication on the web might well be service by publication, which does not entail transmission of a document for service abroad. I discussed these issues in my talk at the Law’s Porosities conference in 2017. […]

By: The Special Commission on Service by Email, Part Two | Letters Blogatory

The Special Commission on Service by Email, Part Two | Letters Blogatory — Mon, 22 Jul 2024 10:01:14 +0000

[…] postal channel for Article 10 purposes. Readers may be interested to look back seven years to my comments at the Law’s Porosities conference, which dealt with the “e-mail is mail” […]

By: Case of the Day: NOCO Co. v. Chang | Letters Blogatory

Case of the Day: NOCO Co. v. Chang | Letters Blogatory — Sun, 19 May 2019 12:28:23 +0000

[…] fair enough). Since there was no way to serve the process without transmitting the documents abroad,1 and since the only method available under the Convention for use in mainland China is the central […]

By: Ted Folkman

Ted Folkman — Fri, 27 Oct 2017 14:54:43 +0000

In reply to Aaron Lukken.

Thanks, Aaron. I think we need to think about email in the context of the Convention because the Convention is exclusive. If the defendant is in Germany, say, then presumably I am effecting service on him in Germany (if not, then where am I effecting service?) If you and I are right and the Convention does not permit service by email when it applies, then there is no way forward. I think in light of trends in methods of modern communication, there is work to be done to ensure that the Convention does not become too divorced from contemporary conditions.

In your hypothetical, you’re right that the wife can serve by email as far as the Convention is concerned, because the address is unknown. But what if it is known? Perhaps if you knew that the defendant’s email server is located in the United States, you might say that the Convention does not apply because there is no occasion to transmit a judicial document abroad for service. But the whole point is that we don’t know where the server is.

I agree with you that service by email is preferable to service by publication in terms of providing actual notice. To my mind, that exemplifies the main reason to think about how to squeeze email service into the Convention. Another reason: how to address the legal pressure caused by the erroneous US lower court decisions authorizing service by email in cases where the Convention applies.

By: Aaron Lukken

Aaron Lukken — Fri, 27 Oct 2017 13:31:36 +0000

Take it a step farther. Why is the email discussion even undertaken in the Hague context? The Convention only applies where the defendant’s address is known. If the address is known, then email is out of the question anyway– at least under current case law and until traditional channels have been exhausted.

The technical and geographic you discuss are precisely the reason I think email falls outside Hague analysis. The best hypo I can devise is a US soldier stationed on a US Army post in Germany (living in barracks). His wife sues for divorce in her home state. She cannot serve him via a Hague authority– not because German officials won’t enter the post, but because she doesn’t have an address for him. The Convention is thus inapplicable.

She also can’t serve via his command structure (Posse Comitatus), and he’s highly unlikely to sign for a certified mail delivery that smells like court documents. What can she do?

I argue that she should be able to serve him via his Gmail address. As you say, we don’t know the locale of the Google server that hosts his email (and really, it could be in California, Iowa, and Ireland– simultaneously). And he could be in Germany or China or Afghanistan when he reads it.

I also argue that, in 2017, email is a significantly more reasonably calculated means of notifying him than that old legal fiction called publication.

My two cents’ worth…