A Roadmap to Service by Email
January 9, 2025
Federal courts have struggled with the question of when they can authorize service by email on a defendant located in a country that belongs to the Hague Service Convention—as we have explained in many prior posts. Though the interaction between the Convention and Federal Rule of Civil Procedure 4(f) can be tricky, there are clear answers to many of the recurrent questions. In “E-Service Across Borders,” a short article just published by Judicature, Bill Dodge and I have laid out a roadmap for federal judges, including a handy-dandy flowchart.
As we write there, “[t]he most important takeaway is that the convention is mandatory and exclusive when it applies, which means that the convention’s silence is equivalent to a prohibition.” If the Convention applies, in other words, email service must fall within the channels of service expressly contemplated by the Convention.
The most likely “home” for email service under the Convention, in turn, is Article 10(a)’s permission to serve via “postal channels.” That means if a defendant has a known address in a country that has objected to Article 10(a), it is very likely that the Convention prohibits service by email. Rule 4(f)(3) provides judges with flexibility to authorize alternative means of service when defendants are located outside the United States, but only if those means are “not prohibited by international agreement.”
This points to the second more important takeaway from the article, and what makes this question so tricky: if the Convention applies, service by email in a federal case must be affirmatively permitted by both the Convention and federal law (e.g., Rule 4, the Due Process Clause, and any specialized statutes pertaining to service). That dual requirement is where our flowchart should come in handy.
We also flag some questions that are more open, like which paragraph of Rule 4(f) applies to service pursuant to different Articles of the Convention. (Ted Folkman recently offered some thoughts about this at his blog.) It might be time to amend Rule 4(f) to help settle some of these questions.
But as for basic principles, both the Convention and Rule 4(f) are already clear: Convention parties must affirmatively agree to means of service (silence cannot be read as permission), and Rule 4(f)(3) does not provide a way to avoid the resulting U.S. treaty obligation.