At least once or twice a month, when I deliver the bad news that service on an offshore defendant will cost several thousand dollars and take several months– if not a couple of years— a prospective client will decide that the better way to go is to seek an order for alternative service, usually electronic service, under Rule 4(f)(3) or its state analogs. This is a flat-out bad idea, and I’m going on record with it now so it doesn’t seem like a brand new thing I just made up to keep the fees rolling in. Truly, if there’s a way to get the job done without having to hire my firm* and hit your client for a four- or five-figure bill, I will tell you— that’s just the way we roll around here at Viking Advocates.

But there’s a whole bunch of horrible, terrible, no-good case law out there that says “nah, don’t sweat it– electronic service is fine. You needn’t worry about the Hague Service Convention.”

Do not rely on this case law. Seriously. It’s going to get smacked down in the very near future, and I don’t want my people to be on the receiving end of the smackdown. Some savvy, belligerent, and very deep-pocketed defendant is going to take this issue up on appeal, and they’re going to win.

The only way that service by e-mail (or social media or text message or… pick an electronic medium that involves a fiber optic line and a bunch of ones and zeros) can possibly fit into a Hague context is if it’s deemed a “postal channel”, and I don’t know of a single Hague authority on the planet that has deemed it so. But even assuming, arguendo, it is a postal channel, it is nonetheless invalid if the destination country objects to Article 10. That encompasses most of the countries where e-service would be handy anyway. Most notably: China, Russia, Mexico, India, Pakistan, Vietnam, Venezuela.

How does the bad case law arise? Simple– courts view the service methods listed in Rule 4(f) as co-equal. That is, federal courts do not view the list as a hierarchy, in which option 1 must be attempted before option 2 is available and so on.** That’s a sensible view of 4(f)’s structure.

And from a due process perspective, electronic service is perfectly acceptable. It’s a means reasonably calculated, in many circumstances, to give a defendant notice of the claim against him/her/it and an opportunity to be heard. For crying out loud, we’re a quarter of the way into the 21st century… email is the way we communicate, and it stands to reason that e-service is so calculated.

But what makes the case law so bad? Well, in order to see electronic service in a Hague context as valid, courts must consciously disregard the word of a very nice lady from Arizona:

Source: National Archives.

You might have heard of one Sandra Day O’Connor, author of the Court’s opinion Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988). She passed away in December after a life that every lawyer in America sees as rock-star level success.

The Schlunk decision contained two pertinent holdings:

Yet that horrible, terrible, no-good case law I mentioned above relies on the idea that the Hague Service Convention doesn’t expressly prohibit email service, so that makes it okay.

Well, it doesn’t expressly prohibit service by carrier pigeon or message-in-a-bottle– technologies which actually existed at the time of the Convention’s adoption in 1965. That doesn’t validate them as service options.

Saying that a method is valid just because the Hague Service Convention doesn’t expressly prohibit that method gets the question backward. Justice O’Connor was clear: a method is valid only if it is expressly authorized or permitted by the Convention.

Litigators avoid Hague strictures at their peril.

* Notably, if you can convince the court to deem U.S. counsel as a foreign defendant’s agent for service. To be sure, this happens under Rule 4(h)(B)(1), and not 4(f)(3).

** Contrast this with 28 U.S.C. §1608, the service section of the Foreign Sovereign Immunities Act, which is specifically a hierarchy.

Author’s Note: this is not to say that electronic service isn’t constitutionally valid from a due process perspective. It clearly is— I mean, come on. It’s the 21st century, for crying out loud. This is how we communicate. This is to say that it’s constitutionally invalid from a Supremacy Clause perspective. The phrase “and all treaties made” should ring a bell.