The U.S. District Court in Delaware ruled that a defendant can be served via his or her e-mail address, and that a client’s e-mail address is not subject to attorney-client privilege.
Judge Mary Pat Thynge issued the ruling in In re: Heckmann Corporation Securities Litigation, a class action lawsuit brought on behalf of shareholders alleging fraud and misrepresentation by prior management in Heckman’s acquisition of China Water.
The lawsuit included former China Water CEO and President Xu Hong Bin as a named defendant. Although all of the other defendants appeared through counsel, the plaintiffs were unable to serve Xu with the lawsuit. The plaintiffs attempted to serve Xu at the address indicated in a prior lawsuit, but the process failed because the address “was not sufficient enough for service.” The plaintiffs next tried to serve Xu through his attorneys in the prior lawsuit. The attorneys refused to accept service. The plaintiffs filed a motion with the court allowing them to serve Xu through his former counsel. The plaintiffs also requested to serve Xu through his e-mail address, and requested that prior counsel provide them with Xu’s contact information, which was divulged in a deposition taken several months before.
Although the Court denied the plaintiffs’ request to serve Xu through his former attorneys, it did uphold serving Xu via e-mail. Acknowledging that no court has prohibited service via e-mail, Judge Thynge held that service by e-mail comports with due process required under Federal Rules of Civil Procedure Rule 4(f)(3) “so long as the method of service is reasonably calculated to reach the defendant and allow the opportunity to object and respond to the litigation.” In the recent deposition, Xu represented that the e-mail address he provided was one he used since his departure from China Water. The Court reasoned that it could be concluded that service through this e-mail address was reasonably calculated to reach Xu. The Court further held that Xu’s contact information was not subject to the attorney-client privilege, because the privilege is limited to “disclosures that are necessary to obtain informed legal advice,” Because the contact information was not privileged, the Court could compel prior counsel to release Xu’s e-mail address to the plaintiffs.
While Heckmann is not law in the Eleventh Circuit, it is persuasive authority and may influence other circuits in their interpretation of permissible methods of service of process.
To read a copy of the case, click here.
Author(s): Brooke P. Dolara
