INTRODUCTION
Technology has fundamentally altered how the legal
profession operates. The impact of technology on the courts and legal profession is
ongoing making its’ first measured step when the Judicial Conference of the
United States approved PACER- Public
Access to Court Electronic Records.1 Today social media is routinely
used in discovery requests2 and now sits at the intersection poised
to change legal practices specifically affecting service of process options.
SERVICE OF PROCESS
REQUIREMENTS AND WHY THE STATUS QUO FOR USING PRINT MEDIUM IS NO LONGER SUBSTANTIVE
AS REASONABLY CALCULATED
“Before a state may legitimately exercise control over
persons and property, the state’s jurisdiction must be perfected by an
appropriate service of process that is effective to notify all parties of proceedings that may
affect their rights.”3 States and federal courts have specific rules
for how service must be completed through Rule4 of the Federal Rules of Civil Procedure (FRCP) and state law.4
In general, a reasonable service method includes serving in person, through mail
or through a respondent accepting service. As a last resort, constructive notice
in a generally circulated newspaper after failure to serve a defendant is
common practice. It is imperative a defendant(s) is properly served otherwise
failure to properly serve may be an argued defense.5 However, with
changing readership habits among the U.S. population print publication
circulation has been on the decline. Current Pew research shows more people
consume news digitally making service through printed newspapers substantially
less impactful. Newspaper readership hovers around 20% of adults ages 18 to 40 compared
to 76% social media usage by adults comprising the same demographic parameters.6
Consequently it could be argued it is time to shift service of process
paradigms to include established social media user habits.
RULINGS AND
CONSIDERATIONS TO USE AS BASIS FOR STATES AND FEDERAL JURISDICTIONS TO INCLUDE
SOCIAL MEDIA AS REASONABLY CALCULATED
One avenue that may amplify a court or states acceptance of
social media service of process is increasing server education in all states on
social media platforms and niches. A
Fordham Law School survey showed there is a wide variation in server education
and training across states and suggests server education and training as a
possible industry reform.7 In some states, servers are required to
be bonded, licensed and registered whereas other states do not have the same
requirements. Debating the inclusion of social media service may warrant not only how the summons is noticed but also education and training on those practices.
In Mullane
v. Central Hanover Bank & Trust Co. it ruled “fundamental requirement
of due process is notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendancy of the action and afford them an
opportunity to present their objection.”8 Additionally, the majority
opinion issued in 1950 argued “it would be practical to use a form of notice
more likely to reach the intended recipients.” In the recent opinion of the
court issued in Baidou v Blood-Dzraku “it would appear that the next frontier in the developing
law of the service of process over the Internet is the use of social media
sites as forums through which a summons can be delivered.”9 Beyond
reduced costs, electronic paper trails, and increased ease, caveats in using
social media accounts is establishing that the account belongs to its user and that
all notifications still meet due process requirements.
CONCLUSION
The arguments to include social media with print or even
over print publications is growing. Provided there is a way to establish
accounts belong to defendants, social media may become a preferred method for service of process requirements or at least used
as an additional component for inclusive service of process requirements.
QUESTIONS TO CONSIDER
Do you think it is
time for service of process requirements to include social media through an amendment to Rule 4 and state laws or are there
still too many outliers to make this a suitable option that meets due process
requirements?
Are there enough technological safeguards in a day of data
privacy and hacking?
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Sources and
Additional Reading
4 https://www.federalrulesofcivilprocedure.org/frcp/title-ii/rule-4-summons/
5 Mauet,
Thomas. “Legal Investigation.” Pretrial, edited by David Marcus, 2015, pp.
79–83.
7 https://www.ftc.gov/sites/default/files/documents/public_comments/protecting-consumers-debt-collection-litigation-and-arbitration-series-roundtable-discussions-august/545921-00025.pdf
8 https://www.lexisnexis.com/lawschool/resources/p/casebrief-mullane-v-cent-hanover-bank-tr-co.aspx
9 https://www.leagle.com/decision/innyco20150403229
