September 26, 2018 Practice Points

Service of Process in 280 Characters or Less

How do you effect service of process on an entity that lacks a principal place of business or clear leadership structure?

By Joseph V. Schaeffer

Ten years ago, most lawyers had never heard of Twitter or WikiLeaks, let alone considered the possibility those organizations would one day be wrapped up in allegations of Russian interference in a presidential election. Nonetheless, times change, and in April 2018, the Democratic National Committee (DNC) sued the Russian Federation, WikiLeaks, and others for their role in hacking the DNC's servers and distributing stolen documents. Democratic Nat'l Comm. v. Russian Fed'n, No. 1:18-cv-03501 (S.D.N.Y. 2018). Since WikiLeaks lacks a principal place of business or clear leadership structure, however, the DNC's attorneys faced an immediate problem: How do you effect service of process?

The starting point for answering this question, of course, was Rule 4 of the Federal Rules of Civil Procedure. And while the allowable method of service varies depending on the type of party to be served and, in some cases, the substantive law of the state in which the district court sits, the basic requirement remains the same: "notice [must be] reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Centr. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Here, the DNC's solution to its problem was elegantly simple: The DNC sought and was given leave of court to serve WikiLeaks using a special-purpose Twitter account and website. Order, Democratic Nat'l Comm., No. 1:18-cv-03501 (S.D.N.Y. Aug. 6, 2018); see also Cohen Milstein Process Server.

While the DNC's case is the highest-profile instance where service of process has been effected through social media, it is hardly the first. A Minnesota family-court judge, for instance, authorized electronic service of process, including through Facebook or MySpace, as far back as 2011. Mpafe v. Mpafe, No. 27-FA-11 (D. Minn. May 10, 2011). And although social media likely will remain the exception to more traditional methods of service for the foreseeable future, lawyers should take note of these developments. Because, if nothing else, these alternate methods of service endorsed by the Democratic National Committee court and others may prove useful the next time your process server is locked in a game of cat-and-mouse with a recalcitrant defendant.

 

Joseph V. Schaeffer is with Spilman Thomas & Battle, PLLC in Pittsburgh, Pennsylvania.


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