John G. Browning Oct. 15, 2009, 2:38am
When most people think of being served with legal documents, they picture the process server knocking at the door, literally the bearer of bad news.
Popular culture has perpetuated the image of the process server as someone who resorts to trickery and even disguises in order to catch their elusive prey – those who are desperately hoping to evade being served with, say, divorce papers or a summons announcing that they've been sued for millions of dollars.
But in today's digital age, emerging media may be making it easier to reach out and serve someone.
In December 2008, the Australian Capital Territory Supreme Court approved the use of popular social networking site Facebook to serve a Canberra couple with notice that they were losing their home after defaulting on a loan.
Mark McCormack, the lawyer for lender MKM Capital, asked for that permission after multiple failed attempts to contact the homeowners at their residence, by mail and via e-mail. Faced with dwindling options, McCormack found homeowner Carmel Corbo's Facebook page using personal information she had provided to the lender, including her birth date and e-mail address.
Fellow borrower/resident Gordon Poyser was listed on her page as a friend. Although he approved McCormack's request, Judge David Harper insisted that the legal documents be attached to a private e-mail sent via Facebook that could not be seen by others visiting the pages.
The ruling made international news. Facebook itself, which has grown to over 300 million users worldwide since its launch in 2004, praised the decision. A spokesman for the site said "We're pleased to see the Australian court validate Facebook as a reliable, secure and private medium for communication. The ruling is also an interesting indication of the increasing role that Facebook is playing in people's lives."
Rather understandably, Carmel Corbo and Gordon Poyser were less enthusiastic about the novel method of serving a foreclosure notice: following publicity about the court order, the couple implemented privacy restrictions that removed their Facebook profiles from public view.
Nevertheless, McCormack viewed the ruling and subsequent attempt via Facebook as helping his client's position that all reasonable steps had been taken to serve Corbo and Poyser, characterizing it as "a valid method of bringing the matter to the attention of the defendant."
Although this Australian case is believed to be the first time service via a social networking site was allowed, it would not be the last.
Shortly thereafter in March, the New Zealand High Court allowed a man to be served with process via Facebook in litigation over some failed business dealings.
Arguing that more conventional attempts at service had been fruitless since the defendant's exact whereabouts were unknown, the New Zealand plaintiff's lawyer pointed out that the defendant maintained a profile on Facebook. The court was persuaded.
The trend has spread to the United Kingdom, where – in another first – the High Court has permitted an injunction on an anonymous blogger to be served via Twitter.
Twitter, of course, is the rapidly-growing social networking/microblogging site (42 million users and counting) on which users can "tweet" followers about what they're doing at any given moment, in messages of 140 characters or less.
Prominent British lawyer and conservative blogger Donal Blaney sought the injunction after an unknown blogger began impersonating Blaney on the Internet. The imposter set up a Twitter account using Blaney's own blog photo and links to Blaney's own blog posts, and then "tweeted" in a writing style similar to Blaney himself.
While parody is legally protected, Blaney took the position that the impersonator was violating Blaney's copyrighted materials. Rather than wait for Twitter's California-based site administrators to take down the offending account, Blaney and his lawyer went directly to court to obtain permission to serve the injunction through Twitter.
They were fortunate enough to find a tech-savvy judge familiar not only with Twitter but also with the December 2008 Australian court's ruling on Facebook.
Courts overseas may be starting to embrace the potential of social networking sites as an alternate avenue for serving formal court documents, but here in the U.S. no court has yet followed suit. It may, however, just be a matter of time before that happens.
One reason Internet service may be inevitable lies in the sheer numbers. Social networking has had explosive growth. According to a September 2009 Nielsen study, Americans devote 17 percent of their internet time to social networks and blogging sites; that figure is a sharp increase from the 6 percent reported by respondents in the 2008 survey.
Another reason is the growing trend among American lawyers to obtain information for cases from the social networking sites of litigants and witnesses.
Courts nationwide have been admitting evidence (such as photos and blog postings) gleaned from sites like MySpace and Facebook in a wide variety of proceedings – everything from divorce and custody cases to sexual harassment lawsuits to drunk driving and even murder cases.
Yet another compelling reason for the coming acceptance of service through social media is the fact that most courts already acknowledge the potential need for alternative methods of serving a defendant.
In most states, including Texas, when a serving party can show the court that attempts at personally serving someone have been unsuccessful and that routine service would be improbable, a court may order "substituted service" as a means of providing the defendant with notice of the lawsuit.
While in most instances such "substituted service" consists of attaching the suit papers themselves to the defendant's front door, or publishing a notice in a local newspaper, methods more in keeping with 21st century lifestyles and technology are gaining acceptance.
In the New York case of Hollow v. Hollow, for example, where the defendant was employed in Saudi Arabia, the court permitted service through e-mail, along with standard and registered international mail. Another New York case, Snyder v. Energy, Inc., also allowed service by e-mail so long as other, more conventional methods were employed as well.
While it may not carry the same formality as serving legal documents, some debt collection firms have begun using social networking sites to track down and serve notice on debtors. James Ricobene and his daughter Gina found this out the hard way.
After Mr. Ricobene failed to make the payments on the loan for his 2007 Mercedes GL450 sport utility vehicle, JPMorgan Chase Bank's collection agents decided to contact Ricobene's daughter in search of the collateral.
Unfortunately, they contacted her by adding her as a "friend" on MySpace, and then leaving a formal collection notice as a message on her MySpace page.
Mr. Ricobene felt such "dirty tactics" crossed the line, and has sued the bank and Universal Tracing Services Inc. for invasion of privacy, consumer fraud and the "substantial emotional distress" caused by Gina's friends and family members seeing the message.
Ricobene may have a valid complaint; the Fair Debt Collection Practices Act expressly prohibits debt collectors from making contact with a third party and from contacting debtors through means where the communication might be seen by someone else (like postcards).
Let's face it – most people with a social networking presence view such sites as a source of entertainment or a means of staying in touch with friends and family.
Membership in sites like Facebook or Twitter, however, may come with an unexpected and dubious "privilege" – being more accessible to the legal system.
Professional process servers may no longer have to worry about the cat-and-mouse challenges of physically serving defendants, if an online alternative beckons.
John Browning is a partner in the Dallas office of Thompson, Coe, Cousins & Irons, L.L.P. He may be contacted at: email@example.com