The ‘New Normal’ and How it Affects Serving of Process

Harlin Parker explores the altered status quo in this article, outlining how process servers have adapted to this ‘new normal’.

The good news is that the worst of the COVID-19 pandemic is behind us. Yet there is no question that we are all living in a ‘new normal’ world when it comes to the logistics of serving civil process. With 40 years of experience, I understand all too well the need to handle these service tasks properly, abiding by the myriad laws that impact how this all gets done. In the real world that means we need to do this as quickly and efficiently as possible at the least necessary cost – something my firm has been doing pretty darn well for a long time.

However, it is now clear that the COVID-19 pandemic upset the old apple cart of daily life in many ways, including how we get these civil process service assignments handled. What used to be best practices are not necessarily so in today’s new world.

Let’s remember the basics: if you are serving a person, you primarily want to deliver the process directly to that person. There is no court that I know of that does not allow this method of service. And where do we find the person we want to serve? Generally at his or her place of business. Why there? Because more often than not, certainly in the world of commercial litigation, you will know where the person you want to serve works. Where do they live? That is something we often have to research… at a cost. So if we can avoid that cost, all the better.

But that ‘in-hand’ delivery is not always easy to do. Sometimes it is actually very hard – certainly if the subject is purposefully avoiding service. Fortunately in most jurisdictions, certainly here in New York, other methods of delivery are allowed to constitute service of process. One of those alternative methods is to leave the documents at the person’s place of business with a co-worker. Either way, experience shows us that service at a person’s place of business, even when via ‘substituted’ service, is often the fastest, simplest and least costly method to get the job done.

But, that was then. This is now. Like it or not, what is clear these days is that we can no longer expect that someone is likely to be found as his or her place of employment. This is because of remote working, or ‘working from home’; whatever you want to call it. It started during the height of the pandemic and it caught on, at least for those for whom it is an option. That amounts to a whole lot of people. Now we often find there is nobody at all in the office. No co-worker to whom we can deliver the documents, let alone the person we want to serve. Or the place of business may only be occupied by people on certain days of the week. All across the country, Friday appears to be the new Saturday.

There is no question that we are all living in a ‘new normal’ world when it comes to the logistics of serving civil process.

How about serving process on a company? That means delivering the documents into the hands of an appropriate person at the company’s office. But, as I just said, in today’s ‘new normal’ we often find there are just no people around, appropriate or otherwise. This is true even for large or relatively large businesses.

Again, let’s remember the basics. If you want to serve process to a company, you generally need to deliver the documents to a person authorised by law or by the company itself. And, historically speaking, finding that suitable, authorised person has been rather easy. You show up at the business office and someone will come and greet the server and accept the documents. That is hard to do when the office is closed or the people you need to see are only in on certain days during the week.

So let us be clear. Yesterday is gone. Today is all we have. By all accounts this ‘new normal’ is happening now and looks to continue to be our future. This means we need to adjust how we go about these assignments – if for no other reason than because nobody, and I mean nobody, wants to spend a dime more on civil litigation than is absolutely necessary. Nor does anyone want to waste precious time, especially when by court order or statute we have only days in which to get the task done. Discovery deadlines are often just that: deadlines.

Here is what I suggest to the many attorneys I am privileged to work with. Let’s go initially with the information you have. If we find a ‘new normal’ problem, then I suggest, for an individual, we immediately look for a home address and attempt there, if possible. That may mean more cost, but it is certainly less time-consuming and costly than making multiple trips to an empty office location.

Yesterday is gone. Today is all we have.

To serve a company, let us do the research and see if that company has a listed current registered agent. The good news is these registered agent companies (i.e. CT Corp.) are open every day, albeit with shorter, curtailed hours. While delivery to a registered agent may cause some delay in the documents actually getting to your intended recipient, this method of service is tried and true.

But wait. We have yet one more wrinkle.

The Interstate Depositions and Discovery Act has made issuing an out-of-state subpoena for your in-state action much easier and far less costly than in the past, and almost all states have now signed on. That is all for the good.

But our ‘new normal’ impacts these assignments as well. Keep in mind that in many states, you have to apply in the county in which your witness lives or works. Today, that individual witness may be working from home, which may be in a different county from where their office is located. For service to a company, you apply in the county where it maintains its office.

Remember that there is generally a return date on these subpoenas. Service must take place in a short amount of time, so we may not have the luxury of coming back ‘next week’.

Individual state laws may prove an additional hurdle. Here in New York, when serving a business entity, one option is to serve via delivery to the New York Secretary of State office. We can serve this way, among other conditions, only if the court or tribunal of venue is one that is actually situated in New York State. Unfortunately, the New York Secretary of State does not accept any subpoenas issued under the Act because it does not consider the action to be venued in a New York court. That becomes another hurdle when the company you want to serve is either small or for some other reason is making itself difficult to serve and does not have a readily available registered agent. If we cannot serve at the company’s listed address, and with the Secretary of State’s office out, then what?

Well, we may have no choice but to identify officers of the company, then locate a residence for them and attempt service there. Yes, at additional cost and additional time – and something we would really rather avoid, as having to serve someone at their residence is never the first choice.

Information on service in any of the member states of the Interstate Depositions and Discover Act can be found here. There you will find a trove of useful information, forms and links, including a witness fee calculator that will make your life infinitely easier when arranging these out-of-state services.

So make no mistake: this ‘new normal’ matters. We all feel the impact. Remember, service of process is fundamental in any litigation. Failure to serve, or to serve properly, can grind everything to a standstill. Civil litigation is already so often an arduous, costly, time-consuming process. Getting these service assignments accomplished properly is always paramount. Doing so as quickly as possible at the least necessary cost remains a concern to litigants and attorneys both. The ‘new normal’ just adds yet another real-world complication.

Harlin Parker, President

Target Legal Process Worldwide Corporation

100 Church Street, 8th floor, New York, NY 10007, USA

Tel: +1 212-227-9600 | +1 646-765-3355

E: harlin@targetlpw.com

Harlin Parker has been a respected investigator, researcher and litigation specialist for more than 30 years. After spending four years as a paralegal and managing clerk with a law firm in New York, where he specialised in estate settlement, civil litigation and commercial transactions, Harlin started his own service company in 1983. Since then, he has built a reputation as an efficient and capable investigator. Harlin serves clients in both New York and New Jersey.

Target Legal Process Worldwide Corporation handles process service assignments across the United States and is affiliated with Target Research & Investigation Corporation. A licensed process serving company, the firm’s executive team possess more than 60 years of combined investigative and security experience which they bring to bear on behalf of private law firms, private business entities and government agencies.