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Another Judge Allows Service Via Facebook

Stacked3This week's Daily Record column is entitled "Another Judge Allows Service Via Facebook."  My past Daily Record articles can be accessed here.

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Another Judge Allows Service Via Facebook

Social media has permeated all aspects of our lives. Whether it’s news breaking on Twitter, professionals connecting on LinkedIn, people sharing momentous occasions on Facebook, or other simply sharing their latest meal on Instagram, it’s hard to escape the effects of social media. That’s why it’s not surprising that social media is increasingly cropping up in the practice of law, whether it’s mining social media for evidence in litigation, researching jurors online, or judges permitting the service of process to occur via social media sites.

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 and a New York family court judge. Then, in March 2015, another New York judge jumped on the bandwagon and permitted service via Facebook in a matrimonial case.

Most recently, Cheryl L. Pollak, United States Magistrate Judge for the Eastern District of New York, considered the issue of whether a plaintiff could serve process upon the defendant via Facebook and email. In Ferrerese v. Shaw,15 CV 3738 (ARR) (CLP), the plaintiff asserted that service by more traditional methods would be impracticable since he’d been unable to locate the plaintiff “despite sending process servers to both of defendant's home addresses, speaking with defendant's sister at one of the home addresses about defendant’s whereabouts, and hiring a private investigator in an effort to locate the defendant… Moreover, after searching various computer databases and social media platforms, petitioner contends that defendant has changed her name several times.”

The Court agreed that serving the defendant via more traditional methods was indeed impracticable and that other alternatives should be considered. In reaching its decision as to whether service via social media might be an option, the Court noted that in recent years, the attitude toward the service of process via social media had changed: “Courts have acknowledged that service by Facebook is a relatively “novel concept," and "that it is conceivable that defendants will not in fact receive notice by this means;" however, courts must remain open to ‘considering requests to authorize service via technological means of then-recent vintage.’"

Next the Court moved on to the plaintiff’s proposed method of service and concluded that “petitioner's proposed method of service by email and Facebook alone are not reasonably calculated to provide notice of the action to defendant” since he had failed to provide sufficient evidence that the email address he intended to use did, in fact, belong to the defendant. Likewise, he had failed to establish that the Facebook account he believed belonged to the defendant was actually maintained by her. However, the court noted that the defendant had been able to successfully reach the defendant in the past using U.S. mail.

Accordingly, the Court granted the defendant’s motion for an alternate method of service via Facebook, but also required him to attempt to effect service using other methods as well: “Plaintiff is Ordered to attempt service of process of the summons and petition by all of the following methods: (1) by sending copies of the summons and petition by certified mail, return receipt to defendant's last known address and to defendant's sister at this address; (2) by emailing a copy of the summons and petition to the email address tatashaw@gmail.com; and (3) by sending a Facebook message to Tata Shaw, which is linked to the Tata Shaw Facebook page, that contains a copy of the summons and petition.”

Another court, another day. No longer is social media a foreign concept or a fad to be discounted. Instead, it’s simply an everyday part of 21st century life; ignore it at your peril and to the detriment of your clients.

 

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. 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 publishes four legal blogs and can be reached at niki@mycase.com.