Wednesday, February 22, 2012

Social media as alternate service, or how to poke someone with your subpoena.

The British and Australian courts have embraced Facebook and Twitter as legitimate alternate means to serve court orders and legal process. I found this 2008  article in the Sydney Morning Herald reports that the Supreme Court of the Australian Capital Territory permitted service of a notice of default through Facebook.

In 2009, a British litigant who complained about anonymous Twitter posts was permitted by the High Court to serve an injunction by posting a message to the site, with a hyperlink to the full court order. The complainant sought relief from "mildly objectional" posts to an anonymous twitter account.

In 2011, another British litigant was permitted to serve process for post-judgment discovery through Facebook. The Telegraph reported that alternate attempts to contact the judgment debtors had been attempted, and were unsuccesful.

On February 21, 2012, AmLaw Daily reported the most recent British court order permitting alternate service of post-judgment process on a judgment debtor.

But resist the urge to "poke" your witnesses and opposing parties, just yet. I don't see any immediate prospect of Maryland courts permitting such relaxed attempts at service of legal process.

It appears that Australian and British law allows delivery of formal court documents by several different means including fax or e-mail. The move to Facebook and Twitter notices and delivery was thus a natural extension of already relaxed court procedure. I don't see a time in the near future when this will be possible, in Maryland.
Here, in the land of pleasant living, the practice of law is burdened with that pesky notion of "constitutional due process." Our kissing cousins across the pond are not so burdened. Our own court rules demand that legal process be personally served on the defendant or responding party. Whether by certified mail, or the traditional knock-on-the-door-hand-delivery, due process requires  certain guarantees that a party receives formal notice of a proceeding before the court can exercise jurisdiction, or impose it's orders that someone refrain from,  or engage in, specified actions.
[UPDATE:  Over the four days since I first posted this comment, I've been chatting this Facebook issue over with a friend who teaches at an area law school. Our discussions centered on a Maryland Rule that permits a third tier of court ordered alternate service, as follows:
When proof is made by affidavit that good faith efforts to serve the defendant... have not succeeded and that service... [by regular mail to the home, or on others residing at the home or at the place of employment] is inapplicable or impracticable, the court may order any other means of service that it deems appropriate in the circumstances and reasonably calculated to give actual notice.
And so, I am left to concede that Facebook as a means of alternate service is, indeed, a possibility in Maryland civil cases. But only as a third-tier choice, after actual "in hand" service is attempted, and after proof of evasion, and even after additional attempts to send regular mail to the home or job site of the defendant.  Facebook and Twitter may fall within the category of "posting on the courthouse door." I now return you to the previously written prose.]

In many cases, affecting proper service can as difficult as trying the case. Here are some of the lengths we've gone to formally invite a defendant to the party, or to serve legal process:
  • Our process server posed as an autograph seeker to lay a summons in the hands of a popular NFL player as he left a conference room in Las Vegas.
  • Our "Tony Soprano" look-a-like stood at the end of the defendant's driveway, as he walked out at dawn to pick up his newspaper.
  • Our client convened a meeting with the defendant in a New York City boardroom while process servers spanned three states to serve summonses and pre-judgment attachments on financial institutions and relatives joined in the fraud. The joy was in describing what was happening to the defendant, as it happened in real time.
  • And when I was a much younger lawyer, it was a thrill to travel with the federal marshal to serve process on a foreign vessel in the harbor, directing that it not leave port pending further order of court.
  • I once entered an arbitration session, only to see that one of the participants was an individual I was trying to serve with a writ, in another case. I excused myself, called the process server, and participated in the arbitration until the process server arrived and delivered the summons as we exited the room.
  • We once persuaded an absconding defendant to return from an "urgent" trip to Nigeria by freezing several of his bank accounts, here in Maryland. No cash, no trip. He returned within a few days of the judge's order.
And the list goes on.  At the moment, we are pressing a motion in federal court to compel the United States Post Office to reveal forwarding address information on a defendant. And we are also working to serve an ex-pat defendant in the Co-ooperative Republic of Guyana. (don't worry, I had to look it up, too.)

Whether we are pursuing a wrongful injury case, a case for property damage, fraud, maritime cargo loss, or real property rights, nothing can be done in the court until the defendant is properly served. But I am left to wonder if we will soon submit affidavits of evasion to the court, asking that we be permitted to post to a known person's Facebook or Twitter account.

So, who do you want to serve? Let's start the hunt.

Wednesday, February 15, 2012

Check, Please! A good bartender won't libel you.

The February 13, 2012 Orange County Weekly blog reported the story of a federal court settlement favoring a restaurant patron discriminated against because of his race. I came across the story after it was picked up by the New York Daily News, and MSNBC.

The Orange County site, and the New York Daily News have the most complete fact recitation. In short, this poor guy did nothing but show up, order food, and pay his bill on frequent visits to the same establishment. Employees took to annotating his bar tab and food bills with racially charged epithets, names and descriptions. One of the sites even includes the copy of one offensive receipt.

Take a moment and breeze through the complaint in this case, captioned as Mark McHenry v CDM Restaurant, Inc., d/b/a Landmark Steakhouse, in the United States District Court, Central District of California, #CV11-02636 JHN.

The case was settled on February 2, 2012, one month before trial, after the Plaintiff's lawyers uncovered over a dozen other instances of such discriminatory behavior. This was after attempts by the Defendants to bar discovery into approximately 167,000 other receipts for evidence of widespread discriminatory behavior. Magistrate Judge Victor B. Kenton permitted the discovery.

This case resonates with me because of a case we recently resolved in favor of a similarly situated person.

Our client was the butt of e-mailed jokes circulated behind his back in the workplace. The e-mails consisted of pornographic images with the client's name, and the name of his wife, superimposed on the images. One of the images made reference to his wife's disability.

Like Mr. McHenry, our Maryland plaintiff was the object of "libel per se." This is a form of defamation, where something awful is said about you which changes how others percieve you, in a negative way. Where the conduct is so horrible that reasonable minds cannot differ on it's defamatory intent and effect, the plaintiff can recover even where there is not evidence that the horrible conduct caused medical damage (such as a need for counseling, or inabililty to perform at work).

And like Mr. McHenry, our case settled when we pushed the employer for discovery into all e-mail files circulated throughout the company which could have contained similar libelous material.

The immediate benefit of these cases is obvious: the injured persons get money as compensation for their shoddy treatment.  The longer term benefit is that the defendants will change their behavior. In my case, the board meeting where the lawsuit and offending employees were discussed was described to me as "the first five minutes of Saving Private Ryan."  I believe it. And they deserved it!

So, be vigilant, be fair, and show some respect to your fellow man. If not, me or some other member of the bar may just sit across the table someday, at your deposition!

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