Twitter Smartphone

 

A California lawsuit is the latest example showing that when plaintiffs attorneys cannot get documents to a defendant through traditional service, social media like Twitter is becoming more of an option.

San Francisco-based Baker Curtis & Schwartz chose to send a tweet after they could not reach the defendant in an employment case. Binary Capital co-founder Jonathan Teo was told via Twitter, “You've been served via tweet in accordance with a Court Order.”

The firm represents a former employee of Binary Capital, Ann Lai.

San Mateo Superior Court Judge Susan Greenberg approved the tweet service Dec. 20, along with the court ordering the publishing of a more traditional notice about the summons in a local newspaper.

Arthur R. Miller, a former Harvard legal scholar now teaching at New York University, told Legaltech News, “Most procedural systems, if not all, provide either explicitly or as a matter of discretion, the ability to use alternative service methods when the traditional methods will not work. This is a matter of judicial discretion and factual context. There have been cases of service on literary agents, relatives, neighbors, and of the surrogates.”

He noted that “given the mobility of modern life,” these situations may become more common, “but I do not think they will take over the world,” he added.

“At least, at present, a judicial order is needed based on a showing, sometimes, of course, it is ex parte. Judges are good at looking at the showings and separating the wheat from the chaff. Then, there is a formality of process, even by mail, that give it a sense of seriousness and officialdom. Tweets and twitters just do not have that and unless we go into a world of universal tweets and twitters, the legal system will be reluctant to forgo the present system for electronica chitchat. Finally, return of service with attendant signatures provides evidence that service has been affected, which supports the notice function of process.”

Miller noted that the balance may shift as electronic communication and verification become more universal. “But that will take time, a shift in attitude and a sense of trust, and, in some places, it must overcome the political power of the process serving the community.”

When asked about the tweet, King & Spalding litigation attorney Emmett Murphy explained to Legaltech News that when traditional service methods aren't feasible, some courts have allowed plaintiffs to use social media accounts as an alternative.

“Some might see it as a logical extension of using email as an alternative form of service, at least where there's evidence the defendant actually uses the social media account frequently,” he said.

“It's definitely becoming more accepted,” added Amanda Sexton, director of corporate development at DGR Legal. “We've been seeing these cases occur more frequently, but [they are] rare in comparison to the overall number of services nationwide. It seems these cases are likely happening more often than we realize, but without reporting coverage or a written opinion by a Judge we simply don't know about them.”

Sexton agreed that traditional methods of services will still be more commonly used than social media. She explained that “without full due diligence—attempts at personal service and to locate another address for the person through an investigation, postal service check, etc.—service via social media can't be approved.”

Specifically, in the California case, it “seems more a case of social media service as a supplement to more common methods of alternate service, as service via publication was also ordered,” she said.

Given the details of the judge's order, “in conjunction with typical methods of alternate service and also mailed to the last known address, it's unlikely any service challenge would be entertained by the court. If service was only completed via Twitter, then there would be more ground to stand on to contest the service, but that's not the case here.”

Sexton also explained that overall, judges also typically ensure adequate due diligence has been completed in initial personal service, that the account belongs to the subject and that the account is active, having been used recently.

“As an alternate method of service this could certainly be the new go-to in order to effectuate service,” agreed Sexton. “With the billions of people who have social media accounts and the decreasing readership of newspaper and standard avenues for service via publication, it makes more sense to serve in a way someone is most likely to receive notice.”