Facebook Service Breaks Onto The Scene: Is a Person’s “Virtual Life” Now a Viable Platform for Service of Process?

April 8, 2015 The E-Discovery Stage Blog

We talk quite a bit on this blog about how the law often lags behind technology rather significantly. There is no more fundamental a legal concept than service. It is the event that places a litigant on notice of the pendency of a claim or request, and triggers the timing for a response. It is like receiving an invitation to a wedding (okay, maybe not for everyone, but you get the point). Until recently, service has been a rather traditional, or, dare I say, old fashioned concept.

My colleague Jennifer Weisberg Millner recently authored a piece for Fox’s NJ Family Law Blog outlining a fascinating case from New York where the Court granted a woman permission to serve a divorce complaint via her husband’s page on Facebook. You can check out her piece here.

Think about it - in 2015 people are constantly updating their Facebook page throughout their day. Morning status updates, lunchtime check-ins, evening commentary -- we all know someone that is doing it, if we are not doing it ourselves. With the advancement of mobile internet technology, you no longer need to be in front of a computer to do it. More importantly, we have become so dependent upon social media and other technological advances like it that we do not pay as much attention to more traditional methods of communication like the mail, or even television. It has emerged as the go to medium of communication in the digital age.

The Court rules of all the jurisdictions where I practice, and many others from jurisdictions where I don't that have been brought to my attention, provide a "catch all" service provision that allow alternative service by some means that is not specifically delineated in the rules, if otherwise authorized by the Court. The cutting edge case mentioned in Jennifer's blog might very well stand for a new trend in litigation where traditional methods of service are impossible, whether due to conditions outside of anyone's control or good old fashioned evasion.

With relative ease, we can obtain basic information about one's social media accounts. With enhanced digital forensics tools, we can dig even deeper. I do not think it is far off for me to predict that efforts to achieve service by social media will become a growing trend. Information about one's social media habits, if collected reliably and credibly, can, as the case outlined in Jennifer's blog post demonstrates, form the basis for a compelling application to a judge to approve alternative service by social media. The argument (oversimplified for the sake of brevity) would go a little something like this: "Your honor, he/she checked in on Facebook everyday, at least once a day, for seven consecutive days, but when my process server when to the house on these same days there was no response at the door."

Where a subject's lack of contacts with the bricks and mortar world are hampering service, their contacts with the virtual world just might be enough convince an out of the box thinking jurist of a work around for the problem. I don't envision sweeping amendments to the various state and federal rules of procedure specifically embracing service by social media, but a significant argument exists that it should not be discounted as a tool for alternative service of process on application to the Court in the litigator's arsenal under the appropriate circumstances.