This week's Daily Record column is entitled "New York Judge Rejects Service Via Facebook."
New York Judge Rejects Service Via Facebook
I’ve written many times in past about the influence of social media on the legal profession. The proliferation of social media on our culture is undeniable, but until recently, most lawyers have successfully ignored social media, and their decision to do so had little, if any, effect upon their practices.
Lately, however, the social media’s impact on the practice of law is inescapable. For years now, a handful of tech-savvy lawyers have been using the Internet and social media to market their practices and network with other lawyers.
But more recently, social media has cropped up in litigation, providing fertile pastures for evidence mining. Lawyers are now using social media to assist during voir dire. Jurors’ social media use has resulted in mistrials. And, actions taken using social media are now the basis of criminal prosecutions.
Social media is even cropping up at the very outset of cases, as evidenced by a recent decision issued by U.S. District Court judge for the Southern District of New York, John F. Keenan. Earlier this month, in Fortunato v. Chase Bank, no. 11 Civ. 6608 (JFK), Judge Keenan issued a Memorandum Opinion and Order addressing, in part, the defendant’s motion to allow service of process upon the plaintiff by sending her a private message on Facebook and by notifying her using the email address listed in her Facebook profile.
This is not an issue of first impression, since this request has been made and granted, in other jurisdictions outside of the United States. In December 2008, an Australian court first allowed service via private Facebook message upon an Australian couple who had defaulted on their mortgage. In February 2009, service was first permitted in Alberta, Canada by publication in a newspaper, forwarding a copy of the claim to the defendant’s former employer, and by sending a notice of the action via Facebook to the defendant’s profile. In March 2009, a New Zealand court first permitted service to be effected via Facebook and email.
Service via Facebook has also been permitted for years by lower courts in England, but the English High Court gave the practice a nod in February of 2012, thus essentially ensuring that Facebook service would soon be commonplace.
But, Facebook service has not yet been approved in the United States and Judge Keenan’s decision in Fortunato continues that trend. Judge Keenan declined to allow service via Facebook since he was not convinced that the plaintiff would, in fact, receive notification of of the proceedings against her: “Service by Facebook is unorthodox to say the least, and this Court is unaware of any other court that has authorized such service…Here, Chase has not set forth any facts that would give the Court a degree of certainty that the Facebook profile its investigator located is in fact maintained by Nicole or that the email address listed on the Facebook profile is operational and accessed by Nicole. Indeed, the Court’s understanding is that anyone can make a Facebook profile using real, fake, or incomplete information, and thus, there is no way for the Court to confirm whether the Nicole Fortunato the investigator found is in fact the third-party Defendant to be served.”
So, for the time being, service by Facebook does not yet pass muster in the United States. Although many other jurisdictions now routinely permit service via Facebook, the United States remains in the minority, for better or for worse.
Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected]