Now Serving...You! Is There A Subpoena Waiting for You on Your Computer?

Courts, and their procedures, are generally the last to adopt new technology. That is especially true when it comes to the core doctrine of fairness that requires notice to be given to individuals and entities of the proceedings against them before the court can enforce its orders over those parties. It is a fundamental part of the Anglo-American system of justice that no one can be imprisoned, fined, or held liable in a civil or criminal proceedings unless he has been properly and legally given notice of the allegations against him, or has waived the right to such notice. This allows potential defendants to argue against being hauled into a court located in a distant place where they do not live or conduct business.

Recently, in a far away place, this concept made a bold leap into the virtual world of the Internet. A court in Canberra, Australia, has allowed one party to serve a court-mandated notice on another by posting it to the Facebook profile for the party to be served. As far as we know, this is the first instance in any Anglo-American court system where such notice has been allowed. Traditionally, these notices were, and still are in all U.S. jurisdictions, required to be delivered to the parties by hand, fax, or mail delivery. All of these methods have the benefit of being related to tangible, physical objects (delivery to the defendant's person, home, business, and even the defendant's personal or business fax machines, with certain permission granted by the court). It is not unusual for U.S. courts to allow certain notices to go out by email, such as a notice for a hearing on a pretrial motion, and in fact, many federal courts now require parties and their attorneys to agree to electronic notification as the sole means of receiving notices from the court. But, the important difference here is that these email notices are the rather routine notices required during the pendency of a lawsuit. So far, parties are not allowed to "serve" each other with process, which is both a procedural and substantive requirement to invoke the court’s power over the party in the first instance. As the old telephone commercials used to say: if you want to sue someone, you are still required to "reach out and touch (that) someone" in a physical manner with the first document which gives them fair notice of the allegations being made against them.

The real distinction here, and where the Australian court is breaking new ground, is in the use of an ethereal, electronic "place" for serving some of these notices which invoke the court's jurisdiction or allow it to enforce its orders after Judgment is entered. Now, it is true that the court only allowed the service of a Judgment after 11 failed attempts to physically serve the defendants and after an evidentiary hearing which proved the real possibility that notice would be received by posting on Facebook. It was not used to give notice of the filing of the suit, which triggered the beginning of the court's exercise of jurisdiction over the parties. That is consistent with how our courts look at alternative methods of service when someone is trying to avoid being served. Rules are already on the books which allow leaving such notices with someone over the age of 16 at a known residence, or even tacking the notice to the door, but only after other traditional steps have been attempted, failed, and evidence presented to the court that such an alternative method would have a substantial chance of reaching the targeted recipients. Still, as we speed down the superhighway of new technology, it is not hard to foresee such virtual neighborhoods becoming a "place" where important notices may reach us, and therefore, be allowed by our courts. In a world where many of us are getting bank statements by accessing an Internet site; paying bills and getting receipts by email; paying income taxes by online transmissions; and shopping, communicating, and transacting business in a virtual world, court rules may be the last to adapt, but they are not immune to change. While the effects of this Australian court ruling may be limited for the moment, it is only a matter of time before we can expect to be facing the question of whether we were given notice of a new lawsuit by a plaintiff using the "Contact Us" email link on a website.

In our evolving virtual world, what happens "down under" may be in the mainstream here in the States before we can say "voice recognition software."