February 25, 2019

Imagine the following scenarios:

• A lawyer, after several attempts to serve a defendant at a last known address, seeks to serve the defendant via e-mail and needs to demonstrate that e-mail service is proper.
• A lawyer is negotiating settlement of a civil matter and sends opposing counsel an e-mail with the offer, and wants to determine if the opposing party is interested in the settlement.
• A client in a civil matter has asked their lawyer, for some reason, to try and locate the whereabouts of the client’s spouse who is represented by opposing counsel.

In all three scenarios above, the lawyer may decide to use any number of e-mail tracking services that would inform the lawyer if the recipient had opened the e-mail or read the attachment, the recipient’s IP address, how long the recipient had the document or a certain page opened, or whether the recipient forwarded the e-mail to others. The question is whether the lawyer should, as a matter of ethical practice, use such tracking software.

The use of e-mail tracking software has been discussed among attorney regulators, including, most recently, during the mid-year National Conference of Bar Counsel meeting in Las Vegas. The Illinois Supreme Court and the ARDC have not had occasion to weigh in on the use of e-mail tracking software, and this article should in no way be viewed as the Court’s or the ARDC’s view on the topic. However, the following is an attempt to summarize the issue and to acquaint those who might be unfamiliar with the topic, especially given the prevalence of electronic file-and-serve systems in federal and state courts.

E-mail tracking software generally works as follows. A sender embeds into an e-mail or an attachment a web beacon, web bug, or pixel tag—usually a single-pixel image, but now also non-pictorial elements such as a font or an embedded link. When the recipient opens the e-mail or attachment, the e-mail client or web browser sends a request to the sender’s server in order to load the information. The request conveys identifying information, which could include the recipient’s IP address, the geographical location of the recipient, the date and time the e-mail was opened, the type of web browser or e-mail reader used, and the operating system and ISP of the recipient. Some tracking software allows senders to hide from the recipient the fact the e-mail is being tracked. Also, certain software can track additional information beyond the original recipient, including information about those who opened the forwarded e-mail.

Three State Bar Associations have concluded that the use of e-mail tracking software raises several red flags under the Rules of Professional Conduct, and have, consequently, determined that their state’s lawyers should not use such software.  For instance, in Alaska Bar Association Opinion No. 2016-1, the Alaska Bar Association determined that “[t]he use of a tracking device that provides information about the use of documents - aside from their receipt and having been ‘read’ by opposing counsel - is a violation of Rule 8.4 and also potentially impermissibly infringes on the lawyer’s ability to preserve a client’s confidences as required by Rule 1.6.” The Bar Association determined that the use of e-mail tracking software is deceptive, because “[i]f the tracking device is performing as designed, a lawyer will have no idea that the sending lawyer is tracking the lawyer’s handling of the communication.” A “bugged” e-mail may also, unknowing to the receiving attorney or their client, reveal the client’s location, which intrudes on the lawyer’s ability to preserve a client’s confidences or secrets. The Bar Association even admonished the disclosed use of “bugged” e-mails when communicating with opposing counsel, concluding that such a use is still dishonest and unethical. 

Agreeing with the Alaska opinion, the Pennsylvania Bar Association, in Formal Opinion 2017-300, concluded that the Pennsylvania Rules of Professional Conduct prohibit Pennsylvania lawyers from using web bugs, which opposing counsel cannot determine are present, or using “any other method to track the receipt and distribution of email sent to opposing counsel.” The Bar Association reasoned that the use of web bugs permits a “sending lawyer to engage in unwarranted intrusions into confidential client relationships” and permits the lawyer to engage in dishonest conduct for the purposes of obtaining confidential information about the client. The Bar Association focused on the scenario in which an attorney receives a document from opposing counsel and forwards it to their client. For the Bar Association, the use of a web bug in such an e-mail would be contrary to the lawyer’s obligation to preserve attorney-client confidentiality, because the attorney and client may reasonably believe that the sender is not aware of the subsequent communication, and the web bug would provide the sender with information privy to the receiving lawyer and client. 
 
Echoing, to some extent, the other bar association opinions, the Illinois State Bar concluded, in Opinion 18-01, that a lawyer’s use of an undisclosed “bugged” e-mail or other electronic communication with other attorneys or clients constitutes dishonesty and “covertly invades the client-lawyer relationship between the receiving lawyer and that lawyer’s client.” The ISBA acknowledged that the Illinois Rules of Professional Conduct “express a general duty that a lawyer should keep abreast of the benefits and risks associated with relevant technology as well as make ‘reasonable efforts’ to prevent unauthorized access to client information.” However, for the ISBA, “requiring the receiving lawyer to first discover and then defeat every undisclosed use of tracking software would be unfair, unworkable, and unreasonable,” in part, because tracking software is not a common functional aspect of electronic documents and because requiring lawyers to defend against their use would create an “arms race” between lawyers and developers.  However, unlike the Alaska Bar Association, the ISBA opined that a lawyer may still use a “bugged” e-mail in correspondence with another lawyer in the course of representing a client, provided that the sending lawyer receives prior informed consent of such use.

All three state bar associations would allow lawyers to use an e-mail client’s “read-receipt” function. The ISBA reasoned that such a feature is “an electronic analogy to certified mail,” in that it “gives a recipient the option to notify the sender that an email was received.”  For the Pennsylvania Bar Association, e-mail users are aware of an e-mail client’s “read-receipt” function and can toggle the feature on and off, thereby permitting or precluding such receipts.  There are limitations of a read-receipt function, however, including that it is generally limited to compatible e-mail clients and a recipient may be able to decline to send a read receipt. 

While Illinois state courts seem to not have addressed the use of e-mail tracking with regard to service of documents, the Federal Courts and the Supreme Court of Arkansas have. Under the Federal Rules of Civil Procedure, service of process by e-mail is implicitly permitted under Rule 4(f)(3), but only upon an individual in a foreign country and provided that the means of service is ordered by court and is not prohibited by international agreement. Fed. R. Civ. P. 4(f)(3); see e.g., Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007 (9th Cir. 2002) (“In proper circumstances, this broad constitutional principle unshackles the federal courts from anachronistic methods of service and permits them entry into the technological renaissance.”).

In Rpost Holdings, Inc. v. Kagan,  No. 2:11-cv-238-JRG, 2012 U.S. Dist. LEXIS 7566 (E.D. Tex., Jan. 23, 2012), the plaintiff sought relief against Dmitry Kagan for alleged infringement of Rpost’s patent and trademarks through pointofmail.com, a website purportedly owned by Kagan.  Rpost could not locate Kagan’s physical address in Israel. Rpost obtained an e-mail address provided by pointofmail.com’s webhost, sent an e-mail, and received a response from an attorney in Israel who purported to represent Kagan. The attorney did not accept service of the summons. Rpost moved to have the court authorize alternative service of process, requesting permission to serve Kagan by electronic mail on both Kagan and his attorney. Rpost supported its use of e-mail, in part, by stating that through its registered e-mail technology, Rpost’s counsel was able to confirm that the e-mail was successfully delivered. Similarly, the United States District Court for the Northern District of California, in the case of Microsoft Corp. v. Gameest Int’l Network Sales Co., Case No. 17-CV-02883-LHK, 2017 U.S. Dist. 167444 (N.D. Cal., Oct. 10, 2017), concluded that the plaintiff’s use of e-mail service was proper and did not offend due process because the defendants e-mailed the plaintiff that they were aware of the litigation and because the plaintiff’s use of Rpost confirmed that the defendants had received and opened the e-mails.

Conversely, in the 2014 case of Steward v. Kuettel, 450 S.W.3d 672 (Ark. 2014), the Arkansas Supreme Court concluded that service of a complaint and summons via e-mail through the use of a tracking software did not meet the minimum process due to the defendant. In that case, the plaintiff demonstrated that attempts to serve the defendant at the defendant’s last known address were not successful and that sources had confirmed that the defendant was using a particular e-mail address. The trial court then entered an order allowing the plaintiff to serve the defendant by e-mail with a tracking pixel to confirm that the defendant received the attached summons and complaint. 

Thereafter, after the deadline for the defendant to file an answer or otherwise plead had passed, the plaintiff filed a motion for default judgment. The plaintiff asserted that the defendant was successfully served by e-mail. In support, he submitted a document containing information showing the date when the e-mail was sent, which e-mail address read the e-mail and on which day and at which time, how many times the e-mail was read, whether the e-mail had been forwarded, the recipient’s operating system, and the recipient’s IP address and browser, along with the recipient’s geographic location and internet service provider.  The plaintiff asserted that the tracking pixel established that the email was successfully read. The circuit court entered a default judgment against the defendant.

In his motion to set aside the default, the defendant argued that the tracking information did not demonstrate that the attachments had been opened; therefore, there was no proof that he had ever received service of process, and the method did not afford him due process. The plaintiff acknowledged that the person who had opened the e-mail did not try to open the attachments.  The tracking pixel should have been triggered if the person had attempted to open the attached .pdf documents. The circuit court denied the defendant’s motion.

The Arkansas Supreme Court, however, agreed with the defendant and concluded that the default judgment was void. The Court stated that while the “circuit court ruled that when [the plaintiff] received a confirmation via tracking pixel that the email giving notice of this lawsuit had been opened, sufficient service of process…would have occurred,” the court’s order “did not contain any requirements to better ensure the effectiveness of the notice.” The e-mail service was not reasonably calculated to give actual notice to the defendant.  Presumably, the Court meant that the tracking software did not show whether the recipient had actually opened the attached summons and complaint.