Facebook continues its march towards recognition as a stable and reliable mode of legal publication and evidentiary source with a recent decision by Manhattan Supreme Court Justice Matthew Cooper's ruling that an estranged wife's attorney may serve divorce papers to her husband through Facebook's direct messenger system. That this decision occurred is not surprising since Facebook is being increasingly utilized as sources of evidence and, as of last year, a way to send legal notice to a person.
While this decision is making headlines, it is not as groundbreaking as it may seem: service by publication is a time-tested and acceptable method for serving legal notice of a lawsuit. Of course, notice by publication currently involves the use of newspapers which are plagued by declining circulation and commonly perceived to be a dying medium...or at least a medium where the average person is not perusing the legal notice section to see if they've been sued today.
Justice Cooper did not arbitrarily allow for this method of service by wife. Many courts do not allow service by publication until the litigant has shown they exhausted all other options for service, so this recent order should not be viewed as overly permissive, but as a reasonable and logical accommodation to a very specific, difficult situation. In this case, the husband had no discernible physical address and after what is described as an exhaustive search using a private investigator and search of public records, the wife appealed to the Court to grant her the ability to serve her husband at the one place he could be reliably found: logged onto Facebook.
Despite this order from the court, do not expect to see Facebook replace the standard modes of legal service. Typical legal process requires that a plaintiff serves a defendant personally with legal papers. Whether it is a divorce or a civil action, a plaintiff has the obligation to make sure the defendant is personally served with the legal documents; otherwise they cannot proceed with their case. This general rule is not without exceptions such as serving a competent adult at the person's residence or having the defendant pick up a certified letter at the post office. All those other examples, however, rely upon having knowledge of where to find the defendant.
The reality of this case is that Justice Cooper's order makes sense. If the point of legal service is to ensure that the defendant knows he's being sued and can raise a defense, what is the point of the wife paying to post an ad in a newspaper which almost surely never be read by the husband when three emails over three weeks will accomplish the same thing?
This is not a drastic shift in how our legal system will work; this is merely an acknowledgement of a newer, more effective, and more specific service tool at the court's disposal. Publishing ads in newspapers did not become the sole method for service, so I doubt service by Facebook will ever be the first option for legal service, but it absolutely has a role as an alternative method for service where the circumstances warrant it.
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