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Two U.S. judges allow service using Facebook

Stacked3This week's Daily Record column is entitled "Two U.S. judges allow service using Facebook."  My past Daily Record articles can be accessed here.

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Two U.S. judges allow service using Facebook

I think by now we can all agree that social media has affected all aspects of our culture, from social interactions and communication to business processes and even the practice of law. Mining social media for evidence and researching jurors using information available online is becoming increasingly commonplace.

More lawyers than ever are using online social networks and tools for business development and marketing purposes.

Even so, social media has not yet permeated all aspects of legal practice in the United States, as I’ve discussed a number of times in the past. However, judges in other jurisdictions have permitted lawyers to serve notice of lawsuits upon opposing parties using social media, starting in December 2008 when 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. Then in 2012, the English High Court also permitted the practice.

However, until recently, U.S. judges have not warmed to the concept. For example, in 2012, U.S. District Court judge for the Southern District of New York, John F. Keenan, in Fortunato v. Chase Bank, no. 11 Civ. 6608 (JFK), declined to permit service via Facebook.

That all changed this year when two different U.S. judges issued orders permitting service upon litigants using Facebook. First, in February 2014, U.S. Magistrate judge for the Eastern District of Virginia, Thomas Rawles Jones Jr., issued an order in Whoshere, Inc., v. Gokhan Orun d/b/a/ WhoNear; Who Near; whonear.me.

In that case, the defendant was located in Turkey. The plaintiff attempted, unsuccessfully, to serve the defendant using more traditional methods, but as the service deadline approached, requested permission to serve the defendant by: 1) email to gokhan@whonear.me; 2) email to gokhanorun@gmail.com; 3) Facebook at https://www.facebook.com/OrunGokhan; and 4) LinkedIn at http://www.linkedin/in/gokhanorum.

The court granted the request, explaining that: “The court finds that service of process through all four means of service, two email and two social networking accounts ostensibly belonging to defendant, comports with due process because it is reasonably calculated under the circumstances to provide defendant notice of this suit.”

In another case, a family court judge, Staten Island Support Magistrate Gregory Gliedman, permitted service on the plaintiff’s U.S.-based ex-wife via Facebook. The court acknowledged that the plaintiff had attempted to serve her using more traditional means and had failed because his ex-wife had moved from her prior address and had left no forwarding address. But, she had an active Facebook account.

Accordingly, the judge concluded that service via Facebook was permissible since “despite the absence of a physical address, [Biscocho] does have a means by which he can contact [Antigua] … namely the existence of a social media account …”

So there you have it: two ground breaking rulings that set the stage for a world where social media is more than just a fad — it’s part of our day-to-day lives in the real world.

So, welcome to the new world order, folks. Social media is here to stay. Learn about it and use it to your advantage when representing your clients. And, even if you don’t, I assure you, your opponents will.

Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, intuitive web-based law practice management software 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 bereached at niki@mycase.com.