Look around the playing fields where children practice soccer or baseball, and you will see many parents checking their phones. However, opening Facebook Messenger may lead to more than an invite to this weekend’s tournament; it may be the first notice of a dissolution action. A recent decision in New York (but not yet in California) held that divorce papers could be served by Facebook. Using your phone to check your Facebook account might be all that is required to commence dissolution proceedings. Consider yourself served!
Some privacy settings may be set to control tags and who may view posts, but is it enough to protect you in litigation by merely defriending an ex or demoting someone from friend to acquaintance with limited access to your profile? Even if an ex is blocked from viewing your account, he or she may be able to message you with a petition or complaint - beginning your divorce proceedings.
In Baidoo v. Blood-Dzraku 5 N.Y.S. 3d 709 (2015), the court acknowledged the prevalence of social media in our lives in holding that a summons and petition for divorce can be served through Facebook.
The threshold question is why service in this manner is necessary. In circumstances where a party does not have a physical address, or the person’s physical whereabouts are unknown, service via social media may be the most practical method.
There are, however, unique challenges that must be addressed, including authenticating the “user” to be served and establishing the timeliness of service.
It is imperative to establish that the user served is actually the individual sought to be served. There are many cases where the use of social media as evidence requires establishing the user is the person in question. The issues surrounding authentication have largely been resolved in those cases through the use of circumstantial evidence - distinguishing language, slang, emoticons, nicknames and other content uniquely attributed to a particular user.
This same circumstantial evidence may be used to authenticate the user when serving via social media. In Baidoo, the petitioner sought to effectuate service via a Facebook account. She provided the court with copies of Facebook exchanges between her and the respondent, as well as photographs of the respondent from his Facebook page.
While there are circumstances where parties have successfully authenticated a user’s social media account as that of the person to be served, it is important to recognize there is no single or guaranteed approach to establishing the requisite authenticating facts.
Establishing a social media user as the person to be served is of little importance if the person does not receive actual notice. It is critical when serving via social media to establish that the recipient received actual and timely notice. The due process concerns with service via social media are the same as with any other method: is service in this manner reasonably calculated to give effective notice to the user? In Baidoo, the petitioner’s affidavit established frequent and recent exchanges with the respondent via Facebook. The petitioner also attested that both she and her attorney were able to communicate with the respondent by way of telephone, voicemail messages and text messages. Through these communications, respondent was notified that the divorce proceeding had commenced and he was served via his Facebook account.
The old adage of “you can run, but you can’t hide” seems all the more fitting in the context of social media. While it may be possible to avoid service of process in the physical world, doing so in the virtual world may prove more challenging, especially as courts approve the use of social media as a proper avenue for service of process.
Neda Shakoori is an attorney with McManis Faulkner. Her practice focuses on civil litigation with an emphasis on commercial and business law matters. She is currently leading the firm’s eDiscovery Initiative and oversees all ESI-related issues in the firm’s cases. She also presents MCLE programs relating to eDiscovery.