Taking Notice and Service of Process Digital

Abstract

In the United States, notice and opportunity to be heard is a cornerstone of due process – the constellation of rights guaranteed by the Fifth and Fourteenth amendments to the U.S. Constitution. Lawsuits typically end in binding judgments enforceable in all U.S. jurisdictions. In order to litigate, adverse parties must know about the existence of pending litigation. Where are they being sued? For what? And what remedy is demanded? Awareness of the lawsuit is a corner- stone of due process. In the worst-case scenario, a court might enter a default judgment against an absent party in which it is now responsible for the judgment, regardless of the merits of the underlying claims. Even in the absence of default judgment, adverse parties need adequate time and key information to begin mounting a defense.

Given that notice and service of process plays such a vital function, one would expect American jurisdictions to be at the forefront of developing and deploying cutting edge technology for finding and serving parties to lawsuits, as well as other parties entitled to notice in litigation, such as absent class members in certain types of class action lawsuits. Indeed, many jurisdictions and private entities have developed sophisticated technologies and platforms that facilitate the conduct of litigation once it is underway. But notice and service of process itself remains trapped in a mostly pre-digital space. Moving forward requires an historical and doctrinal understanding of why notice practices remain so stubbornly analog as well as an attentiveness toward the needs of all litigants so that digitization efforts make service of process a healthy addition to our system of notice rather than a wholesale replacement.

Keywords: notice, service of process, jurisdiction, technology, litigation