Industrious & creative tracking
In one case we worked for plaintiff’s counsel in a tort case where the plaintiff was a woman who had been sexually assaulted by the defendant, a wealthy man who thereafter fled the United States, taking up refuge in a foreign country. Because personal service was not a practical option, the attorney requested that the judge grant us an alternative: service via email. Although very rare, some courts have allowed for service by email in extreme cases. There was a hitch in this case, however: the judge told us that, for the service to be considered valid, we had to be able to show definitively that the email account was still in use, that the defendant was actively opening emails on this account.
This task is not as easy as one might expect. Surely there are features on many common email programs, including Microsoft Outlook, where the sender can request a return receipt. This would show that an email was opened. However, those features require the sender’s complacency in acknowledging receipt of the message, something that we could not count on in this case. There are also programs used by marketing companies that can often tell you if an email is opened or not, but obviously we could not use a marketing company’s email program to send this email for us. What we had to do was figure out how those programs work and mimic the result in our own email.
Consulting with a web developer, we discovered that the way marketers know when an email is opened is by tracking pieces of html code that a recipient inadvertently downloads when he opens an email. Not all email programs automatically download this html code, however; some programs require the recipient of the email to download it manually. We therefore had to concoct a message that the defendant would certainly want to open, thereby downloading the html code we implanted into the message.
By tracking where this unique code was downloaded, we were able to determine the defendant’s exact whereabouts — and we could pinpoint exactly when the message was opened.
Knowing that the defendant was a rich playboy who fancied himself a womanizer, we first sent him a personal message purportedly from a woman he met in the United States, and we attached a “picture” to refresh his memory. The picture was really just a few random dots which he unwittingly downloaded from a website we created for this specific purpose. By tracking where this unique code was downloaded, we were able to determine the defendant’s exact whereabouts — and we could pinpoint exactly when the message was opened.
Our next email to him contained the summons and complaint, and he was officially served.