Continuing a developing trend in federal litigation, U.S. District Judge John W. Darrah permitted Plaintiff, M&R Printing Equipment, Inc., to serve a complaint and summons on Austrian defendant, Dietmar Potscher, by e-mail. The case, M&R Printing Equipment, Inc. v. Potscher, is pending in the United States District Court for the Northern District of Illinois and involves claims for breach of contract and trade secret violations tied to the employer-employee relationship between the plaintiff-employer and defendant-employee. Upon motion of the plaintiff, the Judge permitted the defendant, a resident of Austria, to be served via e-mail under Rule 4(f)(3) of the Federal Rules of Civil Procedure.
This ruling and others like it do not suggest that service of process via e-mail is appropriate and permitted in all circumstances. Rather, the trend seen in the federal courts tends to show that extenuating circumstances will give way to permissible service by e-mail. Such was the case in the M&R Printing litigation, in which the plaintiff based its “Motion for Service of Summons and Complaint by E-mail,” in part, on the defendant’s knowledge of the subject lawsuit, as well as the defendant’s refusal to waive service. These facts, coupled with the permissive language of the Federal Rules pertinent to service of process, led the Judge to permit international service of process via email in these circumstances. Notably, however, is the fact that Austria, the defendant’s country of residence, is not a party to an international treaty or agreement governing service of process (i.e., the Hague Convention, the Inter- American Convention on Letters Rogatory, etc.). It remains uncertain whether the applicability of such a treaty would have altered the analysis of this issue in the M&R Printing Equipment case.
This ruling potentially impacts all entities involved in international commerce, as it seems the once stringent rules of international service of process are receding in this digital age. Accordingly, any e-mails received purporting to serve judicial documents should be given their due attention and not be ignored. Masuda Funai’s largely international litigation practice is prepared to use this ruling to effect service of process abroad, when necessary.