By Gregory A. Neibarger and Joshua Burress
Technology has been utilized by our society, for the most part, to make communication and tasks cheaper, easier and quicker. Electronic filing is one shining example in our judicial system. Predictive coding to assist in discovery might be another. However, technology can do more. For example, utilizing electronic service and even social media to effectuate service of process can and should make the process cheaper, easier, quicker and more reasonably calculated to provide actual notice to a party to litigation.
A recent study found that nearly 75 percent of all adults in the U.S. who use the Internet also have Facebook accounts. To most of us, this statistic is not surprising, but it may be far more significant than we think. What if Facebook could soon have a major (positive) impact on litigation? While there are hosts of cases where one party uses another’s Facebook posts as evidence of conduct or intent in litigation, a far more fundamental and positive impact can occur by utilizing the popular social media service to provide actual notice for service of process.
In September of 2014, a New York judge made headlines when he allowed a man to use Facebook to serve his ex-wife with notice that he was seeking to terminate his child support obligation. Under New York law, a plaintiff can request a court to authorize an alternative method of service upon a showing that: (1) traditional forms of service would be ineffective; and (2) that the alternative method is reasonably calculated to reach the defendant. The judge found that Facebook was an acceptable form of “alternate service.” While the woman could not be located, she remained active on Facebook and went so far as to “Like” photos posted by the man’s current wife. The ruling marked the first time a U.S. court had ever allowed a party to effect service of process on a domestic party via Facebook.
Facebook recently gained traction in another New York court as a viable method of service. In April of this year, a different New York judge authorized a plaintiff to serve her husband with divorce papers by sending a private message to the husband’s Facebook account. In his opinion, the judge pointed out that “a concept should not be rejected simply because it is novel or non-traditional.” Baidoo v. Blood-Dzraku, 5 N.Y.S. 3d 709, 713 (2015). The judge further opined, “In this age of technological enlightenment, what is for the moment unorthodox and unusual stands a good chance of sooner or later being accepted and standard, or even outdated and passé.” Id.
As groundbreaking as the foregoing may seem, this type of electronic service is not new outside of the U.S. In 2009, Australia allowed the use of Facebook to effect service of process. Courts in the United Kingdom followed suit in 2011. Similarly, under the Hague Convention, federal courts have allowed service by electronic mail upon parties who are citizens of foreign countries. Given that most Americans check their social media profiles several times a day from cell phones, tablets and computers, it almost seems intuitive that a court would allow service by social media. So, what’s holding courts back?
Generally speaking, Rule 4.1 of the Indiana Rules of Trial Procedure provides a party with four methods for effecting service upon an individual: (1) registered or certified mail; (2) personal delivery; (3) leaving a copy at the individual’s home; or (4) serving the individual’s agent. Traditionally, if a party could not effect service by using one of these four methods, the party’s only recourse would be service by publication. However, if an individual cannot be located, Rule 4.9 (by way of Rule 4.5) states that service may be made “in any other manner as provided by” the rules. Interestingly, Indiana has a rule analogous to the New York rule that allowed the judges in the above-referenced cases to authorize the use of Facebook to effect service. Rule 4.14(B) allows parties to seek an order to effect “service in a manner not provided by” the rules “when such service is reasonably calculated to give the defendant actual knowledge of the proceedings and an opportunity to be heard.” Thus, the framework exists for Indiana courts to allow and approve service by Facebook when a requesting party demonstrates that the “receiving” party regularly uses Facebook.
The case for service by social media is even more compelling in light of the fact that service by publication almost guarantees not to provide a defendant with actual knowledge of the proceedings. Nonetheless, this new method of service is not without critics. The biggest criticism lodged against using social media as a method of service is that a court would have no way of knowing whether the account was legitimate or fake. However, we live in an age where virtually all online activities – whether we like it or not – are tracked. For example, if you are reading this article online, some computer, somewhere, already has documented your visit to the website. For those concerned with false positives, it likely would be quite simple to trace a registered user’s activity and confirm his/her identify.
As of the time of this article, no Indiana court has addressed the issue of whether service by Facebook would be acceptable. It remains to be seen whether Indiana courts will err on the side of antiquity (e.g. service by publication) or pave the way for more effective and efficient service of process. #ElectronicService•
Gregory Neibarger is a partner at Bingham Greenebaum Doll LLP and specializes in complex commercial litigation in federal and state trial and appellate courts. He is also the team leader of the firm’s Unfair Competitive Business Practices Group. Joshua Burress is an associate at BGD where he assists clients with a variety of business litigation matters. The opinions expressed are those of the authors.