Service of process – being “served” with a summons and complaint at the beginning of a lawsuit – is an essential aspect of the litigation process. The rules have been fairly static for many years, but 21st technologies may eventually prompt a reevaluation of their usefulness. This past week, for example, “A judge has given a New York City woman permission to file for divorce from her elusive husband via a Facebook message.” The judge directed that the woman could serve her husband “via a private Facebook message” which will “be repeated once a week for three consecutive weeks or until ‘acknowledged’ by Ellanora Baidoo’s hard-to-find husband.” See “Court says woman can serve divorce papers via Facebook” The Akron Beacon Journal, http://www.ohio.com/news/break-news/court-says-woman-can-serve-divorce-papers-via-facebook-1.580997.
Once you get past the “service by Facebook” novelty, the NY judge is, in effect, merely allowing service by publication via social media, as opposed to publication in a print newspaper. In Ohio, the Rules of Civil Procedure provide for service by publication when a party cannot be located at a physical address. In practice, this involves a costly newspaper ad, running for 6 consecutive weeks in the largest print newspaper in the county where the lawsuit is pending, buried along other notices and ads that might (but likely won't) be seen by the intended recipient. I recently completed this service by publication process in a small town newspaper, and the cost of the ad alone was more than $1,000.
For this reason, some of the rules regarding service of process read as being rather quaint and antiquated when compared to the everyday technologies of the 21st century. If the goal of service of process is that it ultimately succeeds, bar associations and policymakers should eventually ask some basic questions, especially when it comes to service by publication. For one, is it more likely that an adverse party will be given notice of a pending lawsuit by posting on his/her Facebook page, or by placing a print notice in a newspaper he/she may not even read, in a section of the paper than even many subscribers avoid?
A few jurisdictions have dipped their toes in the water of service by social media. The United States District Court for the Southern District of New York has allowed even personal service by social media, let alone service by publication. See “Service of Process via Social Media Becoming a Reality?” Bloomberg BNA Social Media Blog, http://www.bna.com/service-process-via-b17179872848/. A bill in the Texas legislature appears to be the first attempt to provide for service by social media within statute. Id. The history of service of process as it relates to emerging technologies is also analyzed thoroughly in “Superpoked and Served: Service of Process via Social Networking Sites” by Adriana L. Schultz in the University of Richmond Law Review. http://lawreview.richmond.edu/superpoked-and-served/
The broader legal industry may be slow to embrace this judge's "Service by Facebook" ruling. Indeed, most legal articles about emerging technologies tend to err on the side of pearl-clutching warnings about how cloud computing is dangerous, social media activity is a gateway drug to ethical violations, and other stodgy fretting. But these technologies are here to stay, and as the broader society continues to embrace them, it is likely inevitable that their use will (and should) be adopted by the legal field as well.