Electronic Service of Process Archives - DGR Legal

DGR Serves First Instances of Service Via Social Media Through LinkedIn & Instagram

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service via social media

DGR has served the very first instances of service by LinkedIn and service by Instagram in the world. The case’s uniqueness is added to by the approval of alternate service via social media in a non-matrimonial matter, which could have significant impacts on future similar motions.

E-service history

Electronic service of process is not exactly new, with the first case of e-mail service happening 15 years ago in Rio Properties, Inc.  v. Rio Properties Interlink. Yet electronic service by social media platforms was unchartered territory up until 2011 when a judge approved alternate service via Facebook in a divorce case in Mpafe v. Mpafe. Since then there’s been sporadic approval of electronic service of process cases across the country, with all taking place in the family court and the majority taking place in New York.

The opinions in each case have indicated a similar set of requirements for approving service via social media. Judges have looked to ensure adequate due diligence has been conducted in attempting to serve the subject personally, that the social media accounts belong to the appropriate subject and that there is a likelihood the service documents will actually be seen.

The current general alternate method of service is publication which can be a costly endeavor, especially if multiple weeks are required in more than one publication.  Given the large number of users on social media platforms and the declining rates of physical newspaper purchases and subscriptions, social media is a viable alternate method of service wherein the subject is more likely to see the service documents.

Case and approval for service by social media

In Harleysville Insurance Company of New Jersey v. Mega Security Corp, a Law Division matter, the plaintiff was unable to serve the representative of the company despite numerous attempts. The attorney of record then conducted multiple searches to attempt to locate alternate service addresses for the subject and was unable to do so.

The judge ultimately approved of alternate service in four formats on accounts deemed to be that of the subject: email, Facebook, Instagram and LinkedIn. The service was to be sent over all four channels for three consecutive weeks in a row.

How service was effectuated

Each social media platform operates differently including:

  • Ability to send files, links or only plain-text
  • Read receipts enabled
  • Ability to send from professional versus personal accounts

Each platform required a specific set of steps to ensure ethical and accurate delivery of the service documents.

In order to ensure acceptance by the court and the appropriate authentication of the service attempts, DGR securely captured and stored HTML and metadata for each attempt. The courts have been demanding higher levels of authentication for submissions of electronic evidence or documentation. Gone are the days where a screenshot is substantial proof.

What this case means for service via social media

The most interesting part of this entire case was not the choice of platform. It’s well known that individuals who have one social media account generally have others. Best practices would support attempting service across all available channels. Rather, it’s the type of case that shows a true shift in the acceptance of social media service as an alternate service method.

Prior to Harleysville Insurance v Mega, the general impression was that approval of service via social media was primarily only acceptable in family law matters. This new precedent opens the doors for many a case where personal service has been attempted without success, substantial effort has been made to locate the individual or a new address and there is evidence of active social media accounts.

This case now marks two instances of service via social media in New Jersey. With clear guidelines as to what to include in requests for alternate service via social media and a set process in place to ensure service is authenticated and will stand up if contested, we may start seeing social media become the primary option for alternate service when the subject has at least once active social media account.



Service of Process Via Facebook Denied

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Service of Process Via FacebookYet again the courts have made it clear in order for service of process via Facebook to be approved, proof of authentication and active use of the profile are needed.

In a recent denial of request to serve by Facebook in a divorce matter, a Brooklyn judge ruled the plaintiff hadn’t provided enough evidence the Facebook profile in question belonged to the defendant and that he communicated regularly using the account.

The plaintiff in this case sought to pursue service of process via Facebook as she had tried to serve the defendant personally and efforts to locate a new address for him turned up nothing. She believed he had been deported and is residing in Saudi Arabia, a country that is not a signatory of the Hague Convention and where service, according to the plaintiff, could not be guaranteed and would be costly.

The judge in this case acknowledged service by Facebook as a viable option for alternate service but did not feel confident in the account’s authentication. Despite the plaintiff’s assertions that she communicated with the defendant on Facebook, there were no annexed copies of the correspondence submitted with the request.

“Granting this application for service by Facebook under the facts presented by plaintiff would be akin to the Court permitting service by nail and mail to a building that no longer exists” wrote Judge Jeffrey S. Sunshine.

It’s important to note that the opinion cites the plaintiff’s comments that she has “made every effort to locate” the defendant to serve him personally. In this case Facebook is again being used as an alternate rather than initial method of service, once proof of due diligence has been provided. Simply attempting service at one address is not adequate due diligence either. The counsel in his affirmation also states they have attempted to locate a new address through the New York Department of Motor Vehicles and military service lists. They have also looked to check to see if there was any public record change to any of his government issued ID, which there hadn’t been.

This ruling provides reassurance that service of process, regardless of the method, will continue to abide by due process rights and actually providing notice to the defendant. In this particular case there wasn’t enough proof for the court to grant approval for service by Facebook, setting a standard for all future requests.


The Use of Service Via Facebook in Matrimonial Law

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service via FacebookIn an article recently published by the New Jersey Law Journal, we lay out the increasing use of service via Facebook in matrimonial cases. For those of you who don’t have an account for the NJLJ, below is the full-text.

by Amanda Sexton and Bari Weinberger, Esq.

You’ve been served—by Facebook. Not a phrase you’d expect to hear, but the approval of service by Facebook in a number of matrimonial law cases is proving it could eventually become more common.

Facebook as an Alternate Method of Service

Sometimes one spouse simply walks out on a marriage without providing a new address. This can make both personal service and mail service difficult to accomplish. Courts have started allowing service by email in this type of situation, but if someone truly doesn’t want to be found, they may change their email address as well. If the person remains active on social media, this provides an additional option for contact.

When attempting to serve someone living in a foreign country, special forms may be required, papers may need translating, parties may need to consult with foreign counsel to determine exactly what kind of service will be acceptable, and the foreign central authority may charge a fee for service. These factors may make service by social media particularly appealing. After all, as the court noted in Noel B. v. Anna Maria, there are no geographic limitations on Facebook. At last count, Facebook has a billion active daily users, with more than 84 percent located outside of the United States and Canada.

In Baidoo v. Blood-Dzraku, the application for alternative service was made under a New York rule that allowed a court to direct any method of service that fit the particular circumstances of a case, after demonstrating that other options were “impracticable.” New Jersey Court Rules similarly provide that if service cannot be made by any mode specifically provided for in the rules, the court can order another method, consistent with due process of law.

Due process requires any service method devised by a court to be reasonably calculated to notify the defendant of the court proceedings. As noted in Baidoo, publication service, though it has long been permitted, usually does not provide a reasonable probability of actual notice. New York Supreme Justice Matthew Cooper commented on the common use of publication in the Irish Echoand New York Law Journal in New York County in his opinion, saying, “If that were to be done here, the chances of defendant, who is neither a lawyer nor Irish, ever seeing the summons in print, either in those particular newspapers or in any other, are slim to none.”

Given that reality, when service by publication is the last available option, it becomes a fair question whether service via social media might actually be a superior choice.

Requesting Alternate Service

In New Jersey, a family court plaintiff can ask the court for permission to use an alternative method of service if a spouse has no known address. This is usually either “substituted service” on a third party who can give the divorce papers to the defendant; or service by publication, usually in a newspaper in the county where the action is filed. Before a court will grant such a request, the plaintiff must submit an “affidavit of diligent search,” demonstrating completion of specific efforts to locate the spouse. These efforts include sending letters and self-addressed, stamped envelopes, by regular and certified mail, to the spouse’s family members, friends or past employers who might know his or her address; and by regular mail to the Motor Vehicle Commission in the state where the spouse last held a driver’s license; all branches of the U.S. military; and the post office in the town of the spouse’s last known residence.

Once the inquiries are sent and generally after a reasonable amount of time has passed to receive a reply, the plaintiff can request an order permitting substituted service. If there is no appropriate third party to be served, the plaintiff will request service by publication. All of this requires substantial paperwork and considerable expense. The cost of publication can easily run into hundreds of dollars.

But for those optimistic that a client with limited funds will soon be able to serve all documents over Facebook, don’t get your hopes up just yet. Personal service has remained the preferred method of service in each of these cases. If there is a known address or ability to conduct an investigation to locate a new address for an individual, the court is still going to require the traditional steps related to due process to be followed prior to granting service via Facebook.

Pursuing Service by Facebook

In all cases where service via Facebook was permitted, the judges made clear they saw the value of this method and were unopposed to incorporating technology into the practice of law where it made sense.

In each of the approved cases, there are several things a court will look for prior to approving service (if they decide to approve it all):

• How do we know it’s the right individual?

Many objectors to social media service point out the relative ease with which one can create a fake account portraying the individual being served

Be prepared to submit affidavits of communications with the subject through that account or some concrete evidence it’s indeed that individual. Think consistent pictures of day-to-day activities or postings with information that isn’t common knowledge.

• Why would we serve it by Facebook and not another method?

This goes back to the need to attempt personal service first. If the person can be served at their home address where they’ve lived for the past 15 years, why should the court allow service by Facebook? This type of service will only be approved once other options have been exhausted.

In Baidoo v. Blood-Dzraku, the wife was seeking a divorce from her husband whom she didn’t live with or see for five years after the marriage. Serious efforts were made to locate the husband. After moving in 2011, the post office had no forwarding address for him, so his pre-paid cell-phone company was contacted and an investigator was hired to locate him. All of these efforts failed to produce an address for the husband. In this type of situation where there is clearly no other way to effectuate service, service by Facebook seems an almost logical next step given the wife and husband communicated regularly through its messaging system.

• How can we be sure they will receive notice?

Receiving notice and establishing jurisdiction are key components of service of process, which means the courts want to see the individual is likely to receive the documents. Proof should be presented that the subject is using their social media account with some level of frequency, whether through direct communication, posting updates or liking statuses or pictures.

Account Authentication Is Key

A potential problem with Facebook service is the proliferation of fake accounts. The Baidoo court addressed this by requiring the plaintiff to submit an affidavit verifying that the defendant owned the account in question. She attached copies of messages between herself and the defendant, and identified photos of the defendant on the account. While this was not absolute proof of ownership, the court found it sufficiently persuasive. The court also required her to demonstrate that the defendant logged into the account on a regular basis, and the order required the notice to be posted three times, at weekly intervals. The plaintiff also had an active mobile phone number for the defendant, making voice mail and/or text available as a backup notification method.

Certainly the work required in authenticating account ownership and ongoing use is considerable. It does not, however, seem to be more prohibitive than the work involved in getting approval for and completing service by publication, and in most cases at least, it is probably more effective.

Potential Pitfalls of E-Service

The possibility that an account is fake, that the owner will not log in, or that the wrong person might receive the message, are all potential drawbacks to Facebook service. The safeguards implemented in Baidoo provide some security. It’s also important to note that the method under discussion is Facebook’s private instant messaging service, not a public post.

When a private message is read, Facebook provides a “seen” message with the time of day the message was received. It is of course still not possible to prove that the person who saw it was the account owner, as opposed to a family member or friend, for example. This is also the case with email. For these reasons, e-service is inherently less reliable than either personal service or mail service with return receipt requested. Even allowing for the imperfections, however, notification by instant message appears far more reliable, in this day and age, than notification by publication.

Not all cases are going to get approved. Just look at Fortunato v. Chase. Fortunato claimed the credit card debt in her name was actually racked up by her estranged daughter. In an attempt to implead the daughter on the suit, Chase was unable to locate an address and sought to effect service through Facebook. Yet the court denied the request, stating there wasn’t sufficient evidence that the profile belonged to the correct individual and “the Court’s understanding is that anyone can make a Facebook profile using real, fake or incomplete information.”

Looking Forward

Service of process via Facebook as an alternate service method is still not widely accepted, but its recent use in matrimonial law cases highlights its benefits as a potentially more effective option than service by publication. Prior to pursuing this service method however, be prepared to prove due diligence in attempts at personal service as well as proof of ownership of the Facebook account and frequent use.


Another Case of International Service of Process Via Facebook Allowed

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In yet another case, service of process via Facebook has been granted in an international case, this time by the United States District Court in Maryland.

In Lipenga v. Kambalame a suit was filed against a Malawian diplomat. The plaintiff was unable to find a personal address for the defendant and so service was effectuated in accordance with a Malawian statute that allows the individual to be served through the Head of the Office if they are in the Public Service. Yet despite the Malawian central authority stating in e-mail service was completed and a certificate would be sent shortly, the plaintiff never received a certificate of service.

Without the certificate, the plaintiff could not pursue an entry of default as the court could not confirm that Kambalame had ever received the court documents.

Based on FTC v. PPCare247 Inc. the judge then approved service by Facebook and email. Because Malawai has not objected to Article 10(a) of the Hague Convention on Service of Judicial and Extrajudicial documents, the judge used this basis to apply service by electronic means in addition to postal channels.

In this particular case, the e-mail address was verified as belonging to the defendant through a series of communications to between plaintiff’s counsel and the defendant. The Facebook account was verified by the plaintiff and it was noted by the court there was regular activity on the account, indicating there was a reasonable assumption the court documents would be seen by the defendant.

What’s interesting in this case is that unlike the recent New York cases involving Facebook service ( Noel B v Anna Maria A and Baidoo v. Blood-Dzraku), there was minimal proof in Lipenga v. Kambalame the Facebook account belonged to the defendant. The plaintiff’s statement that this was indeed the account without having proof seems to be the only support for the claim. The alternate method of e-mail service was much more dependable however and given Facebook service was made in conjunction with e-mail, there is much more reason to believe the defendant would actually receive the documents.

To view the full opinion go to: https://lettersblogatory.com/wp-content/uploads/2015/12/09317366442.pdf


CALSPro Amends Best Practices to Include Electronic Service of Process

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electronic service of processThe recent OASIS proposal has moved along an existing conversation by the CALSPro association and has resulted in the inclusion of electronic service of process in their best practices.

The OASIS proposal seeks to suggest the use of e-service as well as set standards associated with it.  CALSPro, along with NAPPS and NJPPSA, submitted comments in response to the proposal but also felt it was important to take the initiative in changing their own association’s best practices to stay current with changing times and technology.

The new standards stress the importance of due process and personal service as the preferred initial method of service and electronic service of process as a secondary means.

In keeping with the comments submitted to OASIS by national and state-level associations, CALSPro has also included the need for a disinterested third party to ensure due process rights are protected during electronic service.

The new best practices also include:

  • Parties should be required to consent to electronic service of process
  • A receipted transaction is required
  • Manner and method should mimic standards for physical service of process
  • Reliable proof documents were received should be provided

The document also lists specifics to be included with electronic service of process documents.

For the full addition to the best practices click here.


Court Allows First Case of Service of Process Via Text Message

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Service of process text messageA court has granted the first ever instance of the use a text message to serve an individual.

The temporary protective custody order was issued by Judge Laura Cordero of the District of Columbia. As part of the complaint against the defendant, the plaintiff cited many instances of unwanted text messages, which according to Serve Now including more than 280 text messages. The abundant use of text messaging no doubt influenced the court as to the defendant’s knowledge of and frequency of use of the technology.

As with many of the interesting methods of service we’ve seen recently (Facebook, Twitter, e-mail), multiple instances were made to locate and serve the individual through traditional methods including multiple stake outs and attempted service at the defendant’s workplace. Service by text message was not the initial method of service attempted.

With more than 90% of American adults owning a cell phone, this ruling could have interesting implications for alternate methods of service.

For more details, go here.


Judge Allows Divorce Papers To Be Served Via Facebook

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service of process through social mediaIn yet another instance of service of process through social media, a judge has allowed a Brooklyn woman to serve divorce papers upon her husband.

Most of the news coverage about the issue has focused mainly on the fact the service was allowed through Facebook. While this is certainly a step closer to e-service, it still remains that traditional methods of service were attempted first. Service via Facebook was not the initial request of the plaintiff.

The plaintiff attempted to locate the subject through multiple methods, even hiring a private investigator. Despite all of her efforts, the defendant couldn’t be located. There was no forwarding address at the post office for him, no billing address for his prepaid cell phone and the DMV had no record of him.

While some question how one could know if the account was active and actually the defendant, Facebook and the phone have been the sole means of communication between him and the plaintiff. Whether or not the defendant was the one who actually read the message could be contested, but given the plaintiff and defendant communicated on a regular basis over Facebook it would make sense to maintain he regularly checked the account.

Service of process through social media is not a widespread practice yet, and in the cases where it has been granted it is only after all other methods of locating and serving the individual have been exhausted.


Texas Bill to Allow Service of Process By Social Media

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There have been a number of recent bills on the table which could affect process servers. One of the top ones from last week involved Texas HB 1989, which if enacted could make service of process by social media a viable option.

According to the bill the court must find a number of things before an individual can be served via social media:

(1)  the defendant maintains a social media page on that website;

(2)  the profile on the social media page is the profile of the defendant;

(3)  the defendant regularly accesses the social media page account; and

(4)  the defendant could reasonably be expected to receive actual notice if the electronic communication were sent to the defendant’s account.

There has been no procedure set for how it will be determined if any of the above are true. In any event it is certainly an indication of where things are headed in our industry.

As pointed out by Jeff Karotkin, Ohio already has a bill in place which allows for electronic service of process. Within Ohio electronic service of process is currently as threatening to personal service of process as is service by publication. Given the relatively quick adoption of this practice in a notoriously slow adapting profession, the movement of the law to accept such service may mean the future could see it becoming more of a front line service.

A pointed difference between these two bills though is in Ohio it is clearly stated that this should be used an alternate means of service after reasonable diligence has been executed. In Texas, this type of language doesn’t exist in this new bill.

Another interesting piece in the Texas bill is that it does not mention electronic service of process and specifically refers to social media.  This may lead to some necessary clarification down the road if the bill is passed to determine exactly what sites fall under the category of “social media page”.   Would that eliminate service through email as most of us with a gmail or other email account generally don’t have a “social media page” for our email address (aside from those with Google+ of course!).

Do you think if passed this bill would have any real impact on our industry?


Another Case of Electronic Service of Process

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Yet another case of e-service has occurred in the United States.

The interesting thing about this case is that the e-service appears to have been approved in part due to the fact that the company owned and operated more than 34 websites. Being a web-based company, it would make sense that they utilized email on a frequent basis and had access to it. The likelihood of them checking their email was high in this instance.  The court ruled that the service could only be completed as long as there was proof of email delivery.

While it can be argued that it cannot be assumed that everyone would have the same level of email interaction as a web-based company, this has certainly created a precedent. In other cases overseas, particularly in cases of service through Facebook, there needed to be proof that the individual was likely to receive the message. Through Facebook, recent pictures, updates or new friends on profiles which haven’t edited their privacy setting could be indicators of this.

But how does one know about the e-mail of an individual?  Where is the line drawn? 

As a process server, the primary concern is of this becoming the first line of action. For now the instances in which e-service was allowed was after alternate options had been exhausted and personal service was attempted in some format. But once the ice starts to crack, it spreads.

It begins with service as a last resort means on individuals and corporations which have a clear web presence. It moves on to any subject which has avoided all other types of services.  And then it becomes the first type of attempt, wherein cheaper costs associated with emailing convince lawmakers to eliminate the need for personal service.

As personal service is part of our due rights, and as it cannot be guaranteed that an individual who opened the email is necessarily the subject, we can only hope that this doesn’t happen. It’s something to keep an eye on, as it may cause others across the country to pursue similar avenues of serving.

Stay vigilant process servers!