How Lawyers Can Use Social Media In Investigations and Process Service
Part 2 of 3: Service of Process Via Facebook: Alternate Service Method
By Amanda Sexton, On The Lookout Investigations
While cases involving service of process via Facebook are still the exception, courts in the United States certainly do seem to be warming up to the idea based on opinions and use of precedent.
Since the issuing of the first court order in the United States approving Facebook as a means of alternate service in Mpafe v. Mpafe in 2011, several cases have followed suite. In all of them the same issues have come up:
- How do we know this is the correct individual?
- Has there been contact with the individual through this Facebook account? Is the e-mail address connected to this account validated as belonging to the subject? Do the friends and family reflect that of the subject?
- How certain are we they will see the notice?
- How often is the subject on Facebook? Are there frequent posts or frequent message communications?
- Why does this make sense as opposed to another method of alternate service?
- Is there no known address for the subject? Has due diligence been completed and have attempts at personal service been exhausted?
What does this mean for the future of service of process?
It’s important to note that in each case service via Facebook has taken place by court order, after initial service or because personal service couldn’t be attempted. Given due process rights, personal service has remained the preferred method of service.
Given how unlikely it is individuals will ever see a publication, the high cost involved and the purpose of alternate service in due process rights, more courts are seeing Facebook as a viable means of alternate service of the subject.
In Baidoo v. Blood-Dzraku, the court opinion noted:
“In divorce cases brought in New York County, plaintiffs are often granted permission to publish the summons in such newspapers as the New York Law Journal or the Irish Echo. If that were to be done here, the chances of defendant, who is neither a lawyer nor Irish, ever seeing the summons in print, either in those particular newspapers or in any other, are slim to none.”
When it comes to serving internationally judges are also approving the use of Facebook service, particularly in countries who are signatories to the Hague Convention of the Service Abroad of Judicial and Extrajudicial Documents. FTC v. PCCare 247, Inc. was the first international case where it was determined that because the country hadn’t objected to Article 10(a) and service by postal channels or to service via electronic means, then service via Facebook was allowable. Since then judges have relied on this precedent in other cases.
There are many nuances involved in each of the cases where alternate service via Facebook was granted, but the underlying theme is the same – courts are becoming more open to technology and the idea of Facebook as a method of alternate service where the subject may actually see the notice over traditional publication.
Amanda Sexton, Director of Corporate Development: On The Lookout Investigations
Amanda Sexton is the Director of Corporate Development at On The Lookout Investigations and DGR –The Source for Legal Support, winners for the past three years of the New Jersey Law Journal’s annual ‘Best Of’ survey. She is currently President of the New Jersey Professional Process Servers Association, a board member of the Legal Vendors Network and attends local and national conferences and training sessions to stay on top of the latest techniques and regulations for both process service and private investigations, including online investigations and social media surveillance.