The following is version two of a draft recommendation
for the completion of secondary service of process in a multi-efiling vendor
system for incorporation into ECF 4.x. Brian Hickman is editing this
document. Please send comments, questions and corrections to Brian
Hickman at brian.hickman@wolterskluwer.com.
Recommendations
for the completion of secondary service of process in a multi-efiling vendor
system.
OBJECTIVE
The specification, ECF 4.0, will suggest how a jurisdiction
could structure secondary service of process, using the ECF specification, when
working with multiple efiling vendors.
GENERAL DISCUSSION
ECF 4.0 supports two options by which a filer can complete
secondary service of process in a system incorporating multiple efiling
vendors. The first option is based upon the court implementing the HUB MDE.
Via the HUB MDE, any filer can complete secondary service of process upon the
client of any other filer, regardless of whether the sender and the recipient
share a common Filing MDE / efiling vendor. The second option foregoes
the HUB MDE and is based upon reciprocal duties defined in contract or other
form of agreement wherein each efiling vendor accepts to receive and to deliver
documents from all other efiling vendors directly.
VALUE PROPOSITION
ANALYSIS
In a multiple efiling vendor situation, the value of an
efiling vendor’s service to the vendor’s clients is a function of:
- The speed, reliability and cost savings of efiling
documents when contrasted with the cost of physical delivery of the same
documents;
and,
·
The “Network Effects” of the efiling
system. As used here, network effect is a characteristic of an efiling
system where the value of the system to a potential customer depends on the
number of other customers who can receive secondary service of process via the
system. Each time secondary service of process can be completed -
regardless of whether the sender and the recipient subscribe to the same or to
different Filing MDEs - it increases the value of the efiling system.
Each time secondary service of process cannot be completed - because the sender
and the recipient subscribe to competing Filing MDEs – it decreases the
value of the efiling system. These changes in value apply to the filers,
the efiling vendors and to the court.
The
goal of the two optional best practices is to facilitate the maximization of
positive network effects for the filers, efiling vendors and the courts.
PROPOSED BEST
PRACTICES – The Court provides a HUB MDE
The court can provide a HUB Legal Service MDE in support of
the efiling system. Through the HUB MDE, all parties may complete
secondary service upon the court and upon the other parties; or, upon the other
parties and not the court.
To maximize the value of the HUB MDE, the court should
require each efiling vendor, in consideration for the privilege of efiling
documents with the court, to receive documents from the HUB MDE addressed to
the efiling vendor’s clients. By implementing this agreement, all
filers can complete secondary service upon all parties who have an address
accessible from the HUB MDE.
Assumption: The court will not provide the service of
a directory, listing the parties entitled to receive secondary service and the
address, electronic or physical, upon which secondary service may be
completed.
While the court may provide a directory of all parties, or
their attorneys, who can be reached via the HUB MDE, this is not required by
the standard. The ultimate responsibility to complete secondary service
lies with the sender, and not the court. Therefore, the sender must
maintain a service list for each case. The court may expose the
court’s service list, or not. The court’s service list is an
aid to the senders, but does not necessarily match the service list of all
persons required to complete secondary service of process at any point in the
litigation.
Payment: Each efiling vendor should look to their own
client for payment of fees associated with the electronic receipt and filing of
documents. Efiling vendors should not look to other efiling vendors, or
the client of a competing efiling vendor, for payment for service of
documents. Justification: A toll to complete secondary service
across efiling vendor domains is in conflict with the mutual benefit of
enhancing positive network effects. An efiling vendor who charges their
client a fee for universal access, secondary service that originates from any
efiling vendor’s Filing MDE, does not pose the same conflict with the
mutual benefit of enhanced network effects. On the contrary, an agreement
between all efiling vendors to cooperate in the completion of secondary service
across their domains increases the value of each efiling vendor’s
services to their own clients.
PROPOSED BEST
PRACTICES- The Court does not provide a Hub MDE
The court will not provide the service, directly or indirectly,
of the HUB MDE.
The court will also not provide the service of a directory,
listing the parties entitled to receive secondary service and the address,
electronic or physical, upon which secondary service may be completed.
The court should enter into a master contract or cooperative
agreement with all efiling vendors for the electronic filing of documents with
the court and for completion of lateral service across efiling vendor domains.
Contract Terms: In consideration for a reciprocal
obligation to accept filings from competing efiling vendors to complete
secondary service, each efiling vendor obtains a reciprocal right to complete
secondary service upon the clients of a competing efiling vendor. Mutual
consent to complete secondary service across efiling vendor domains enhances
the network effects of the efiling system, a significant value to the clients
of the efiling system.
In terms of the ECF 4.0 standard, each efiling vendor
consents to accept documents from all other efiling vendor’s Filing MDE
for delivery to their client’s Legal Service MDE.
Payment: Each efiling vendor should look to their own
client for payment of fees associated with the electronic receipt and filing of
documents. Efiling vendors should not look to other efiling vendors, or
the client of a competing efiling vendor, for payment for service of
documents. Justification: A toll to complete secondary service
across efiling vendor domains is in conflict with the mutual benefit of
enhancing network effects. An efiling vendor who charges their client a
fee for universal access, secondary service that originates from any efiling
vendor’s Filing MDE, does not poise the same conflict with the mutual
benefit of enhanced network effects. On the contrary, an agreement
between all efiling vendors to cooperate in the completion of secondary service
across their domains increases the value of each efiling vendor’s
services to their clients.
Brian
Hickman
Senior Attorney, Government
206.622.4511 (office)
206.437.1766 (mobile)
brian.hickman@wolterskluwer.com
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