Process servers began many moons ago as a way to ensure that parties sued or accused received communication of the case and of their rights to due process. Here in the 21st century, technologies are quickly adding and adapting to new ways to communicate. Courts are adapting to this new environment too. Many courts use electronic filing, and parties use email or programs like Lexis File & Serve to send one other pleadings.
And now service of process through the Internet.
Back in 2002, the 9th Circuit upheld a district court’s allowance of service of process on a foreign corporation through an email address when traditional means of service failed and the party served via email knew of the litigation. It noted, “the Constitution does not require any particular means of service of process, only that the method selected be reasonably calculated to provide notice and an opportunity to respond.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
Now a High Court judge in the UK has ruled using Facebook to serve a summons was a proper method of service. The lawyers requesting Facebook service checked to make sure the Facebook account was active, adding to their argument that the user recently approved two friend requests. UK courts have been known to use Twitter and text messaging to serve orders. Australian, Canadian and New Zealand courts have similarly approved service via the Internet when traditional means failed.
The cases that have used the Internet to communicate orders or summons all share the commonality that traditional service methods failed and the parties needed to find alternative ways to get notice to the defendants. The parties chose the Internet as that alternative method.
The “slippery slope” of using the Internet as the first means of service of process cannot be far off given the trend of accepting the Internet as a proper way to deliver summons, orders and other pleadings. There are certainly advantages to utilizing the Internet as your litigation process server. With the ability of programs to prompt users or send received email receipts there are ways to meet the requirement that the Internet service method is “reasonably calculated to provide notice and an opportunity to respond.” A defamation suit based on comments made on Twitter? Using Twitter to serve a defamation Complaint on that user directly through Twitter sounds appealing doesn’t it?
A concern when using electronic methods is whether the user served is actually the party intended. Whether the intended recipient received notice of his or her due process rights is a concern, but such a concern is intrinsic in every attempt to serve process. Additionally, technology companies have been slow to give up user information for litigation purposes and using their products to for service of process will certainly receive criticism and push-back.
There are strong arguments to keeping traditional means of service of process through process servers, but as our lives become increasingly dependent on the Internet it should come as no surprise that our means of communicating litigation will be more dependent on the Internet too. The Internet is now our phone, our mall, our radio, our TV and our office. Soon enough, it will probably be our process server too.