American Bar Association – Electronic Proof of Mailing

Have you ever wasted time at the post office picking up mail from opposing counsel that no one was around to sign for when delivery was attempted? Have you ever had a sneaking suspicion that opposing counsel was sending non-vital correspondence by certified mail to unnecessarily cause you delay? Recently on the ABA Solosez Listserv, participants discussed these questions and other frustrations with the use of certified mail. Are there quicker electronic alternatives to paper-based, signature-required mail for proof of mailing and delivery?

In the absence of statutory requirements to use USPS certified mail, RPost’s Registered E-mail service may be worth looking into. With the speed and convenience of e-mail, RPost provides tamper- and counterfeit-proof, legally admissible evidence that an e-mail message was sent and that it was received by the intended recipients. RPost also provides proof of the content. RPost has partnered with numerous bar associations nationwide, some of which have endorsed the service, to provide information regarding RPost’s Registered Email™ service.

RPost’s claims of legal admissibility have been analyzed in a legal review by Locke Lord Bissell & Liddell, LLP. Among its conclusions: “RPost’s Registered E-mail service receipts are admissible as to their fact of delivery, as to their legal time of delivery and as to the authenticity of their content,” and “RPost’s Registered E-mail service, under the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Commerce Act, can serve as the functional equivalent of paper mail, to be used in lieu of certified mail, registered mail, return receipt mail, private express mail services, fax logs and similar types of paper mail services.”

The UETA and the ESGNCA laws give legal recognition to electronic signatures, records and contracts in certain contexts. However, keep in mind that in some situations statutes and court rules may require the use of USPS certified mail for correspondence.

For privacy and protection RPost includes an optional end-to-end encryption feature, SecuRmail, which encrypts e-mail message bodies and attachments to protect them while in transit. When the recipient enters the correct access password, the message and its attachments are decrypted.

For further protection of confidential attachments, RPost can convert attachments to PDFs that are password protected and encrypted. These PDFs remain encrypted until the access password is used. As a security precaution it may be advisable to transmit the passwords to the recipients over the phone instead of via e-mail. These optional encryption features are provided to users at no extra charge.

Software needs to be installed on a user’s computer in order to send RPost Registered E-mails; however, no special action is needed to receive the messages. RPost will work with most recipients’ e-mail programs regardless of whether the e-mail client is text-only or can also display HTML messages.

Pricing is based on usage of Registered E-mail “units” per month (an unlimited plan may be introduced in February 2009). One unit is defined as one address per megabyte. To figure out how many units will be used for a particular message, multiply the size of the message in megabytes by the number of addresses to which the message will be sent. Individual plans start at $14.75 for 25 units per month, and business plans start at $79 for 100 units per month.

An alternative to RPost is ReadNotify, which also provides tracking of e-mail messages. However, certain ReadNotify features are controversial, such as the ability to track particular documents, such as Adobe PDFs and Microsoft Word, Excel and PowerPoint files, independently of their attachment to an e-mail message. These features were used to try to spy on an investigative journalist in a Hewlett Packard corporate spying scandal in 2006.

ReadNotify’s Web site lacks clear documentation of all its product’s features, and unlike RPost, ReadNotify has not partnered with bar associations nationwide.

USPS affiliate partner Click2Mail allows users to upload documents electronically to be sent as certified mail. However, delivery is not electronic. Click2Mail prints out correspondence and sends it to the recipient in paper form, which does not eliminate the problem of possible missed deliveries and subsequent time-consuming visits to the post office.

Electronic alternatives to paper-based proof of mailing can offer speed and convenience. An agreement with opposing counsel to use such electronic alternatives may help avoid snail-mail delivery times and time spent waiting in line at the post office.