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YOU’VE BEEN #SERVED

Since 2013, the Texas Rules of Civil Procedure has seen a number of changes, including rules aimed at avoiding delays, limits on discovery, and the elimination of frivolous cases early in the litigation process. Texas attorneys even have the option to save time and money by serving certain court documents via email.  As technology in general, and social media in particular become more integral parts of our lives, many have begun to wonder if widespread service by social media is around the corner.

In assessing the legality of service, Courts ask whether the method of service is reasonably calculated to give notice and whether it meets statutory requirements. Under the Mullane standard, an alternate form of service is permissible when (1) it is likely to give actual notice, (2) it is substantially better than service by publication, and (3) it is not substantially less likely to give notice than other alternative methods.

In 2000 (only a couple decades after email and fax were established), the court in In re International Telemedia Associates, Inc.  allowed service on an elusive defendant by “fax, e-mail, and mail to the last known address.” In support, the court cited the rapid rise in internet usage, and recognized the need to adapt. For a lumbering and often luddite judiciary, this embrace of technology was surprising. The US Supreme Court, for instance, only began offering an internet-based filing system in 2016.

Despite email’s pervasiveness, it is not without its limitations.  Specifically, email does not provide a reliable way to confirm whether an email and any attachments were actually received. Nor does it provide a ready means to verify that the email address belongs to the Defendant. Social Media, on the other hand, allows Plaintiffs to easily compare identifying information to determine whether an account belongs to the defendant, and allows Plaintiffs to gauge a defendant’s interaction with the account, making it easy to assess whether notice was actually received. Returning to the Mullane standard, Service through social media appears just as likely to provide notice as other unconventional methods, including fax and email.

Cases utilizing service by social media are rare, but several recent federal and state court rulings show a growing willingness to embrace the technology. Facebook service began as a method of serving foreign individuals under the federal rules of civil procedure. Then in 2014, a New York Court permitted service via Facebook after the plaintiff was able to show that the Facebook account belonged to her husband, and that he consistently logged on to the account and would therefore see the summons. The Court concluded that Facebook provided the best chance of the defendant getting actual notice of these proceedings.

While courts remain divided on the issue, service by social media has a growing body of supporting case law. As social media continues to infiltrate our everyday lives, the use of social networks for service of process seems like the logical next step.

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