Wednesday, November 4, 2009

Service on a Social Media Site?

I suggest giving a serious look at DLA Piper's  Facebook - The Future of Service of Process?. I cannot say how well the Australian case will fly in Indiana but I feel very confident that Indiana needs to give a serious look at this looming (yes, looming) possiblity.

Current US Jurisprudence

While there is no record yet of courts in the US allowing formal service via Facebook, prosecutors are commonly permitted to use photographs obtained from social networking websites as evidence in court for a variety of proceedings—from divorce to sexual harassment to drunk driving to murder cases.7

Federal Rule of Civil Procedure 4(e)(2)(B) allows an individual located within a US judicial district to be served by leaving documents at an “individual’s dwelling or usual place of abode…” While the terms “dwelling or usual place of abode” are understood to mean an individual’s physical home, it is not unrealistic to predict that this language could one day be expanded by a court to include a person’s usual place of virtual abode.

Furthermore, Federal Rules of Civil Procedure 4(f)(2) and 4(f)(3) allow an individual located in a foreign country to be served, in the absence of internationally agreed means, “by a method that is reasonably calculated to give notice…as prescribed by the foreign country’s law for service” or “by other means not prohibited by international agreement, as the court orders.” This language clearly allows room for the service of process via social networking websites on individuals who are outside of the US. It certainly allows service on individuals located in Australia and New Zealand, if a reasonable case can be made.

Implications in the US

The materials and photographs that become a part of an individual’s on-line profile are already being used as admissible evidence in US courts.8 Will the ability to serve process via the virtual world be the next milestone? The implications of this possibility are considerable. Many Facebook users joined the website for fun and amusement or to more easily keep in touch with family and friends. Their membership, however, may also make them more accessible to the legal system. Professional process servers may soon no longer be required to play cat-and-mouse games in the physical world in order to personally serve individuals.

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