Service in 140 characters or less

Imagine getting that chirp from you phone, that notification that someone has tweeted you, or Facebooked you. You open your page only to find:

@LOLawOffice: @poorsap d00d, uv been served!

Could that that be proper service? According to a Lexis/Nexis blog, in some countries, yes. [HT: SBM Blog] The blog details how such service has been allowed in Australia, Canada, New Zealand, and the United Kingdom. (In fairness, the UK case wasn’t all that crazy. The plaintiff was attempting to serve an injunction against an anonymous blogger who was impersonating him on the Internet. In the other cases, it was simply a defendant that couldn’t be located.)

The blog  notes some obstacles to the practice ever being the norm here in the United States, let alone in Michigan. In particular, like in the UK case, it’s not that difficult to make a fake account for someone (Let’s face it: You’re nobody until someone makes a fake Twitter account to parody you.) The post also notes that, even if it’s authenticated, infrequent users of such sites might not actually receive the notice. (Then again, is that really any different than posting a summons and complaint at the last known address?)

I can think of many other reasons why it’s a bad idea, most of which are more privacy-based. For example, is it really fair for, say, an attorney for your estranged husband or wife to serve you by posting on your Facebook wall, so all your friends can see? And what about people that have disabled their wall so others can’t post on it? (If you have a business page, and you haven’t disabled allowing others to post on your wall, you are playing with fire.) And that’s just for Facebook.

On Twitter, you can’t send a person a private direct message with a link unless the person follows you, leaving an open “mention” tweet as your only option – once again, putting your client’s business out there on social media for the world to see.

Some might argue that you can serve documents electronically now, through email. But in such cases, you’re serving opposing counsel through an e-filing service at an address that must be legitimate because counsel used it to register and agreed to be served through the address. Courts have ruled (the 6th Circuit just last week) that “I don’t check that email” isn’t a defense to not seeing service in those email accounts. There’s already been verification of the account and consent to be served there.

As Bradley Shear points out, courts are already struggling with authenticating social media posts as evidence. Using them for service of process, at least for now, seems one step too far.

UPDATE: When I wrote that last line, I knew I was treading on thin ice, that someone somewhere had already allowed it. And thanks to Kalamazoo attorney Philip Ellison, I’ve discovered just how wrong I was. Ellison’s clients were granted an order of for alternate service via Facebook by District Court Judge Robert Kropf in Dipiero v. Jack’s Wholesale Windows and Design of Schoolcraft, Inc.


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