Is Facebook the future process server?

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By Brian Frasier
Dolan Media Newswires

As West Michigan solo attorney Philip Ellison prepared for trial, he ran into a not-so-uncommon problem: he couldn’t find his key witness to serve him with a trial subpoena.

His clients were suing a window manufacturer for allegedly improperly installing custom-made windows in their house.

Months before, Ellison initially made contact with the salesman through Facebook and set up a deposition, at which the salesman appeared and gave Ellison all of his contact information.

Since the deposition, however, the salesman had returned to working for the defendant in the case and couldn’t be found for proper service of a trial subpoena.

Ellison’s solution? He asked Portage District Court Judge Robert Kropf for an order of alternative service that would allow for service of the subpoena by posting it on the salesman’s Facebook page. After all, he had made previous contact through the social media website and could verify that it was, in fact, the witness’ personal page.

Kropf granted the order, but also required Ellison to serve through the mail and by posting at the last known address. Ellison did as he was ordered, receiving no replies. The mailed subpoena was returned by the post office.

Yet, on the day of trial, the witness appeared.

“I couldn’t believe it,” Ellison said. “I was all ready to ask for his deposition testimony to be included, and sure enough, he was there.”

Kropf declined to comment for this story.

Constitutional issues

Alternative service is a constitutional due process issue, said Nelson Miller, professor at The Thomas M. Cooley Law School, and judges considering the use of a social media site for such purposes have to balance the state’s interest in enforcing its laws and the private citizen’s interest in having his day in court.

The problem is that alternative service doesn’t have the same reliability of receipt as the traditional methods.

“You’re using some other means than the traditional one of handing it to the person or getting them to sign the green [certified receipt] card,” he said. “You’re really not getting the same assurance that they received notice.”

American appeals courts have yet to release any decisions opining on the issue, but it has been allowed internationally. In the United Kingdom, a court allowed a blogger to serve an injunction over Twitter to an anonymous person who was impersonating him through the same Twitter address.

An Australian court allowed a foreclosure notice to be served over Facebook after attorneys were able to match up identifiable information from the Facebook profiles with information contained within the loan documents.

And a New Zealand judge overseeing a business dispute allowed service of a complaint over Facebook when the defendant couldn’t be found for conventional service.

Miller said one of the biggest issues in these cases is verification and authentication, i.e. that the Facebook or Twitter account is actually that of the defendant and that the defendant uses it. Because of these issues, for now, service over social media is likely limited to alternative service when using other more traditional methods, like in Ellison’s case.

“It seems from the couple of opinions we have that it wouldn’t be the only way in which the court would permit service,” he said. “It would be used on the Facebook or Twitter page, but also do the other things, nailing it to a door or publishing it in a newspaper, which would be highly unlikely to reach the person. But do the traditional things plus use the social media, then it might be acceptable.”

Potential dangers of posting a summons or subpoena are privilege and the cost of posting lawsuit allegations on someone’s page, Miller said.

“It’s an absolute judicial privilege that exists when you’re filing papers in court or speak in court,” he said. “But putting something up on Facebook is for all the world to see. That’s a classic example of losing the privilege: that you’re not acting within the forum, within the scope of the judicial proceeding.”

Miller said attorneys using the Internet for service would be wise to protect themselves by using only private postings, such as email or perhaps a private Facebook message, rather than just posting a PDF file to the defendant’s wall.

Despite these issues, Miller said that’s likely a matter of time before the practice becomes more customary.

“Just as was the case with e-discovery, that’s a really well developed body of law now, how to preserve it, what responsibilities you have,” Miller said. “This will be too, soon. Give it five or 10 years.

Alternative means

As a method of alternative service used in conjunction with other methods, Ellison said social media service, in some cases, are much more likely to get the desired effect than the more traditional methods, such as mail, posting on a courthouse bulletin board or publication in a local newspaper.

“The nice thing about Facebook is that you know if they’ve been accessing it because it leaves a mark on their timeline now,” he said. “It leaves a record of what they’re doing on there now. You know if they’re actively using the account, unlike a newspaper, where you don’t know if they have a subscription or not.”

“If you look at the standard [from the Michigan Court Rules], is it reasonably calculated to afford the person notice?

That standard is well met with a Facebook account, especially if people are accessing Facebook day in and day out as part of the way they conduct their day-to-day lives.

Ellison admitted that he had an advantage in arguing for social media service in his case because he had already communicated with the witness over Facebook. It might not be so easy in other cases, especially if the person to be served has a common name like John Smith.

“I can see the argument that it might not work in every case,” he said. “But on the other hand, service by mail by certified receipt doesn’t work really well either, but we don’t throw out the process. We make it available for those circumstances where it’s needed.

“And in my case, it worked well.”