An Attorney and a Paralegal Discuss Service of Process Through Social Media
In a recent episode of The Paralegal Voice, Vicki Voisin and Erdal Turnacioglu discussed the history of service of process through social media, when it should be used, and what their predictions are for the future. Vicki, also known as the Paralegal Mentor, has years of experience as a paralegal and hosts The Paralegal Voice podcast. Turnacioglu is currently an attorney with Weber Gallagher in New Jersey and practices in general liability, medical malpractice, and employment. The two offer many insights to a law firm's perspective on service through social media and what it means for attorneys, paralegals, courts, defendants, and, of course, the process server.
You can listen to the complete episode below or on Legal Talk Network.
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Turnacioglu recently wrote an article titled Facebook Notification: You’ve Been Served, which is referenced many times throughout the interview. In it, Turnacioglu discusses service of process through social media's origins in serving foreign defendants through email, how this evolved into serving domestic defendants, and whether he thinks this is a growing trend.
Referencing a case involving a scheme to defraud American customers through fictionalized issues with their computers, Turnacioglue writes...
The court first noted that service by email was appropriate, based on the 2002 Ninth Circuit holding, since the defendants ran an Internet-based business, frequently used their emails for business purposes, and used their email to set up merchandising and advertising accounts. In fact, one of the defendants even contacted the court on four occasions via his company’s email address.
The FTC, “for the sake of thoroughness,” also sought to serve the defendants via Facebook. The court noted that the FTC’s submissions regarding service via Facebook “suppl[ied]ample reason for confidence that the Facebook accounts identified are actually operated by defendants.”
Several cases are referenced in the article in great detail and are discussed during the interview as well. If you don't have time to listen to the interview, you can read through the conversation below.
Read the Interview
Vicki: Erdal, you came to my attention when I read your recent article titled "Facebook Notification: You’ve Been Served." Tell our listeners how you came to write this article.
Erdal: Just as an initial matter, I'm part of the Law Practice Division with the ABA. Some of the folks over at the Law Practice Today webzine just contacted me and asked if I was interested in contributing an article to their social media issue. When I got that, I thought, well, e-discovery's been covered extensively, but how about something more along the lines of e-service of process. I looked into it a little bit and it just took off from there.
Vicki: Before we go any further, let’s discuss the traditional methods of service that most attorneys use and what has previously been done when traditional methods did not work.
Erdal: Traditional methods of service involve personal service on an individual or a corporation. Alternative methods of service, at least in New York for which I'm most familiar, include substituted service on a personal suitable agent discretion at their usual place of business or abode, but it also includes nail and mail and also by publication.
Vicki: Okay and publication's a problem. People aren't using newspapers like they were, so what we've done is we've entered this age of technology and again, these traditional methods of service and even the methods of alternate service may not work in today's world. So, how would you explain that new phenomenon.
Erdal: Well, let me just preface that by saying that in the vast majority of cases traditional methods of service, or if you want to say traditional alternative methods of service, have worked out just fine. Process servers have just done a fantastic job of getting people served and getting the affidavits over to us to be filed in court. But, as I reference in the article, we're continually just becoming a more mobile society. Not just from the standpoint of an individual, but also corporations and other businesses are existing virtually, in the cloud, as they say.
Vicki: What about the people who don't have traditional addresses to be served at? That's beginning to happen. I know that they don't have landlines anymore. Things are really changing. Now, I've been a paralegal for longer than I want to tell you, but we always did the service usually then it would be the publication and that kind of thing. People wouldn't accept their mail even though we'd send it certified it would come back, so then we would do the publication and that also took a lot of effort and you had to be sure you got it done before the summons expired. So, we had a lot to keep track of and we're still going to have to do that. What I'd like to know from you is how social media is changing these procedures that we've traditionally used to serve parties.
Erdal: Right now, I don't think that there's going to be any significant changes, and I don't think that there are going to be any significant changes for the next five to ten years if I were to guess, just to throw out some numbers. And I think it's in part due to the attorneys themselves and even judges not really being comfortable with this new form of service. Attorneys, generally speaking, are risk averse and so they don't necessarily want to subject themselves to getting this method of service to be refused by a court. There's just significant risks involved for a lawyer to rely on this new form of service, but that being said, as a footnote in one of the divorce cases that I mentioned in my article provided a good answer to this. As of 2014, according to the case, there were over 157 million Facebook users and obviously this number is growing every moment of every day, and of course this number doesn't take into account the other social media networks such as Twitter and LinkedIn. I think that these are certainly trends that will be focused on.
Vicki: When did the use of Social Media for service of process actually begin?
Erdal: I think that in terms of social media it really originates from the earlier forms of service by email. I think that there were some cases from 2002, 2003, regarding service by email on foreign defendants. But in terms of the social media cases that I've researched, there were some from 2012 and 2013, and these dealt with service on the foreign defendants. One of them, ironically enough, was a Turkish individual, and the second was a corporation in India. And in those cases the plaintiffs are relying on the federal rules, which primarily dealt with allowing service as long as there was no international protocol against it. There, in India and Turkey, there was nothing that email or social media was not allowed so the court did not really have an issue allowing service by Facebook on these foreign defendants. And again, I think that last statement cannot be overemphasized. It certainly became a crucial consideration when the courts finally had to address service on domestic defendants, that is, people that are located within the United States. The courts wanted to make sure that somebody using Facebook or whatever other social media account was not a dummy account and that the person that was listed on the account would actually receive notice of the lawsuit which was in conformance with constitutional notice requirements.
Vicki: Erdal, you were talking about making sure that this wasn't a dummy account when you were trying to serve someone through social media. How do you do that?
Erdal: I think it just takes a little bit of investigation on part of the plaintiff's attorney or the paralegal whose working for the plaintiff. That is, that you have to make sure that the person is actually using the account. Some of the cases that I've mentioned in my article, I think it was a Gloria Forcinatto case that I mentioned, where the court was uncomfortable with the idea of allowing the service of the summons and complaint via this person's Facebook account because there was no affidavit by the investigator that stated that this person was actually using the account. And I think that that's the broad objection or fear that the courts have with service by social media. Certainly when I mention to other partners at my firm they were incredulous, and I think that's the first and foremost aspect of it. Not only just the fact that it's a new technology, but that you have to do some investigating to make sure that the account is verifiable and in use.
Vicki: With Facebook you can tell if they've been posting or not, whether they've put pictures up that might be applicable to proving that they were there, changing the cover photo and things like that. So that would be the way that you'd do it, is if it's actually being updated and taken care of that way. Erdal, I'm assuming, and I'd like you to verify this, that social media is used only after all traditional methods of service have been exhausted? Only with permission of court?
Erdal: Yeah, that's absolutely correct. You should only really consider service by Facebook when you've already attempted to use all the other methods whether it's by personal service or by nail and mail, whatever method is approved in your jurisdiction. So in New York, for example, after attempting these traditional methods, the CPOR allows you to file a motion requesting that the court fashion an alternative method of service and state all of the means of service attempted. And again you would provide the court with the reasonable and diligent efforts you'd made to serve the person by traditional methods and also, of course, the affidavit or other sworn statement regarding the notice to Facebook that would be effectuated.
Vicki: Would there be any pitfalls to service by social media? Is there any danger?
Erdal: I think that the main danger would be that the person is not using the Facebook account or that they may have used it once upon a time and maybe it's not necessarily a dummy account but it's just not in use anymore and the person just does not get the notice that you and the court would be able to fashion. But I think it's important to note there is that in the cases I had referenced in my article the court sort of recognizes this and not only do you serve a summons and complaint by Facebook, but similar to nail and mail you'd serve a copy of the pleadings by regular mail to the last known address. That way you'd get a balance of the two methods of service.
Vicki: Would it be helpful to include language in a contract agreeing to service by means of social media in the event of litigation?
Erdal: Actually that's something that I never really considered. But certainly, attorneys, crafty attorneys of course, too, could similarly fashion a provision in a contract or agreement to this effect. They do this with indemnification provisions and other choices of law or conflict of law provisions. As you mentioned before with the pitfalls, you'd have to make sure the defendant, whether the other party is an employee or a business associated or even a husband and wife, however, the agreement would be fashioned is actually using the social media account, so then my concern would be what would happen if that person, the defendant, switches over to active use of a different platform, let's say from Facebook to LinkedIn. Does that mean that the service by Facebook is no longer valid? And would you have to have compliance people at the firm or the plaintiff himself or herself actively keeping a law of the defendant's social media use? These are some of the considerations I was thinking about.
Vicki: What is your prediction about the use of social media in the future? It really is going to happen, right?
Erdal: I mean, yeah, I think so. It's just becoming more and more available and used whether it's somebody on their laptop, iPad, iPhone. Social media isn't going away. It's just going to get bigger and bigger, and while courts can try not to address it or deny applications, I think it's important to note from some of the earlier court decisions reflecting on the fact that, to quote from one of the court's decisions, history teaches that as technology and technological advances in mobile communications progress, courts have to be open to considering requests to authorize service by electronic means. So, it's just something that the legal profession has had to confront before with each new technology, whether by facsimile, email, or, as now, social media.
Vicki: How do you view the paralegal's role in this movement towards service by social media?
Erdal: I think the paralegal can be hugely instrumental. I used to be at a plaintiff's firm and I used paralegals and legal assistants all the time in making sure that the process server was provided with the necessary information so that the service could be effectuated, and the paralegals would certainly be able to follow up if there were issues that the process server was being faced with and making sure that diligent efforts were being made. So I think that the paralegal is hugely instrumental in assisting the attorney in making sure that the summons and complaint gets served.