9th Circuit Court of Appeals Approves Service by E-Mail In Certain Situations
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Recognizing the realities of today's international marketplace - and the ability of businesses to operate almost entirely in cyber-space - the 9th Circuit Court of Appeals upheld a lower court's decision that lawyers can serve legal papers on their opposition via e-mail.

The ruling comes as part of RIO PROPERTIES, INC. v. RIO INT'L INTERLINK (click this link and scroll down to "RIO") in which Las Vegas' Rio Hotel & Casino (RIO) sued the owner of the online betting site riosports.com. The site's owners Rio International Interlink (RII) is based in Costa Rica and maintains no physical offices in the United States (although the company did list the address of a US-based courier for certain correspondence and payment remittance). Additionally, RII listed no physical office address or phone contact information in Costa Rica. The only contact information available was an e-mail address posted on the RII web site.

RIO sued RII for trademark infringement with relation to the riosports.com betting site and after being unable to serve papers on RII via conventional methods, petitioned the trial court to allow service by e-mail. The court agreed; and RII appealed the decision - resulting in the 9th Circuit's approval of service by e-mail.

"RIO need not have attempted every permissible means of service of process before petitioning the court for alternative relief," the Appeals Court ruled. "Instead, RIO needed only to demonstrate the facts and circumstances of the present case necessitated the [trial] court's intervention. Thus, when RIO presented the [trial] court with its inability to serve an elusive international defendant, striving to evade service of process, the [trial] court properly exercised its discretionary powers to craft alternate means of service."

Despite ruling the appropriatness of service by e-mail in this case, the 9th Circuit noted particular limitations of such service, including:

  • there is no reliable way to confirm receipt of e-mail messages
  • limited use of electronic signatures could present verification problems under federal rules of procedure
  • system compatibility problems could lead to controversies as to whether attached documents actually were received

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