Un-like? The courts are warming up to Facebook as a way to serve legal documents and Kevin Yee is there to give his take.
Facebook recently added new “reactions” for users so you can now comment with not just a “like” but a “love”, “hate”, “ha-ha”, “wow”, “sad”, and “angry”.
So how would you react if you saw this status update on your Facebook wall: “OMG! I just got served with court documents here on Facebook—I’m getting sued!?”
This might all seem far-fetched, but it isn’t. The courts have been warming up to the idea of allowing Facebook to notify people of court processes for a while now. Given the growing reliance on social media, it raises an interesting question: what role does (or will) social media have in the litigation process? Will it eventually become widely accepted as a way of notifying people?
At various parts of the court process, documents and notices must be given to the other side. There are different forms of “service” that are required, depending on the circumstances. A person might need to be personally served. This would require physically handing the papers to the person. This is particularly the case if someone doesn’t know they have been sued yet and they haven’t hired a lawyer. Or perhaps they are representing themselves in the lawsuit.
Often, personal service is impractical. Sometimes people are just difficult to locate. Maybe they have moved away, or perhaps they are evading service. This can pose a big problem. Without properly served documents, lawsuits can get derailed.
In certain instances, social-media platforms have been a solution. In court, I’ve seen Facebook offered as a creative alternative with increasing frequency. In one case, a plaintiff’s lawyer told the court how his client’s lawsuit was getting sidetracked because the defendant skipped town. There, the court allowed the lawyer to notify the defendant of the lawsuit with a Facebook message. The court ordered that the message describe where to pick up the necessary court documents.
I’ve also seen the court approve delivery of court documents through Facebook. In one case, a final divorce order was made and the formality of sending the order was done through Facebook with the court’s permission.
When might Facebook be used in the court process for sending documents? It really depends on the circumstances. Ultimately, it will come down to fairness and reliability. The courts want to ensure that parties are kept up to speed about their lawsuits. To be fair, all parties should have the chance to seek legal advice and make their case. No one should be caught by surprise by the proceedings themselves.
This is why the general requirement is for personal service. If parties are physically handed documents rather than through less reliable methods (such as mail), a fair process is ensured.
So what will be the right circumstances where the alternative of Facebook proves fair and reliable? The usual forms of service would need to prove impractical. The court would need to know whether or not enough efforts have been made to locate the missing litigant. If the person has been unable to be located despite good efforts, then the courts might consider social media such as Facebook as a way to serve documents.
Of course, there must be some certainty that the social-media account, in fact, belongs to the person in question. If the missing defendant has a common name that brings up multiple hits on a search, reliability goes out the window.
Also, the account would need to be relatively active. Notifying someone at a long inactive account would be as unfair and unreliable as mailing to a last known address that hasn’t been used in years. If the account is one that is updated constantly, then the courts would be more confident in its reliability as a way of communication.
In the right circumstances, a private Facebook message with the court document attached might prove to be a practical solution. Because all of those factors would likely need to be met, social-media platforms such as Facebook won’t be the default method of communication in litigation any time soon.
However, the courts are looking at these platforms with growing ease. We are seeing them used as a communication tool in conjunction with the other forms of service. It’s also a helpful source of information on the last known whereabouts of a litigant.
All of this shows that the legal process is catching up to the ever-changing realities of the way we communicate with one another. We use social media to find and talk to each other. It’s inevitable that these tools will play a more important role in the court process.
A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.