NYSBA issues updated social media guidelines for lawyers

New Jersey judge permits service via Facebook

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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New Jersey judge permits service via Facebook

If you’re a litigator, then I can only assume that by now you fully understand how social media platforms impact your practice. At this point in time, one way or another, you’ve undoubtedly encountered social media issues while representing your clients. Whether it’s crimes being committed using social media platforms, mining social media for evidence, researching jurors on social media, or using social media as a method for service of process, social media crops up in a multitude of ways during the litigation process.

This trend began in approximately 2010, when social media use began to appear in criminal cases as the basis for criminal acts. From there it took a few years before lawyers began to affirmatively use social media on their client’s behalf during litigation matters. I’ve been tracking those trends for some time now, including the use of social media platforms for service of process.

For example, in October 2014, I wrote about two judges who had issued orders permitting service upon litigants using Facebook: a U.S. Magistrate judge for the Eastern District of Virginia (Whoshere, Inc., v. Gokhan Orun d/b/a/ WhoNear) and a New York family court judge (Noel B. v. Anna Maria A., Docket No. F-00787-13/14B). Then, in March 2015, another New York judge jumped on the bandwagon and permitted service via Facebook in a matrimonial case (Baidoo v. Blood-Dzraku (2015 NY Slip Op 25096)).

Last year, I wrote about Ferrerese v. Shaw,15 CV 3738 (ARR) (CLP), where United States Magistrate Judge for the Eastern District of New York, Cheryl L. Pollak permitted an alternate method of service via Facebook, but also required the plaintiff to attempt to effect service using other methods as well.

The issue was addressed even more recently in Axberg v. Langston, Docket No. MRS-C-157 (2016). In this post-adoption case, as reported in the New Jersey Law Journal, Judge Stephan C. Hansbury, Morris County P.J. (ret.), considered the issue of whether service of process could be effected via social media - specifically using Facebook.

In this case, the plaintiffs filed an order to show cause and a verified complaint seeking to restrain the defendant, the purported biological father of their adopted son, from contacting them and/or their son on social media. According to the complaint, the defendant had reached out to their son, his sister, and his adoptive father on Facebook and Instagram, claiming to be his biological father.

After unsuccessfully attempting to serve the defendant via more traditional methods, including regular and certified mail, the plaintiffs sought permission to serve the defendant using Facebook. In reaching its decision, the Court applied the 3-prong test established in Baidoo (above) and determined that the Facebook page in question was the defendant’s, that it appeared to be regularly updated, and due to the unique nature of this case, no other supplemental service method was necessary. Accordingly, the Court concluded that service via Facebook, and Facebook alone, was a sufficient method of service.

Following the Court’s decision, service of process using Facebook was thus accomplished and the defendant soon replied, sending a private message to the plaintiffs counsel on Facebook indicating that he’d received it, stating “I’ll see you in court.” He subsequently appeared via telephone on the return date of the matter.

Another court, another day. Service of process using social media platforms is becoming increasingly common, which is not unexpected. After all, the practice of law can only resist societal changes for so long. Social media is a force to be reckoned with and it’s not going away. Rather than turn a blind eye to it, learn about it and use it to the benefit of your clients. After all, knowledge is power and you have an obligation to provide zealous representation to your clients - something that is impossible to do if you’re not adequately armed with the tools needed to do so.

Nicole Black is a Rochester, New York attorney, legal technology journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. She is also 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 can be reached at niki@mycase.com.