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Your Facebook Statusâ€”â€œServedâ€?
THE A MERICAN E XPERIENCE
number of legal observers, commenting on the growing acceptance of substituted service through social media abroad, predicted that courts in the United States would not be too far behind.123 However, even as state and federal courts nationwide embraced the use of content from social networking sites as evidence in all kinds of cases,124 judges remained skeptical of the capacity of a site like Facebook or Twitter to provide a user with adequate notice of a legal proceeding.
Class Action Notice via Twitter: Jermyn v. Best Buy For example, in one case, the plaintiff consumers initiated a class-action lawsuit against Best Buy, claiming that the electronics giant failed to honor its price-matching guarantee.1257KHIHGHUDOFRXUWFHUWLÂżHGDFODVVFRQVLVWLQJRI1HZ<RUNUHVLGHQWVZKRKDG purchased certain merchandise from Best Buy since 2002 but who had been denied the EHQHÂżWVRIWKHFRPSDQ\ÂśVSULFHJXDUDQWHH2QEHKDOIRIWKHFODVVOHDGSODLQWLII-HUP\QSURposed furnishing notice to prospective class members via several methods, including Best Buyâ€™s â€œTwelpforceâ€? Twitter account, SMS and email.126 (Somewhat surprisingly, neither party suggested either Best Buyâ€™s main Twitter account or Facebook page; perhaps there was concern over news of the class action provoking a negative reaction among the recipients of Best Buyâ€™s main marketing channels.) The court rejected all three suggestions in December 2010, noting that Best Buy was only required to undertake â€œreasonable effortsâ€? in identifying and notifying potentially affected class members.127 Regarding Twitter, the court felt that a â€œtweetâ€? about the pending class action â€œwill OLNHO\UHDFKDQDWLRQZLGHDXGLHQFHÂ˛DJURXSWKDWLVVLJQLÂżFDQWO\EURDGHUWKDQWKHGHÂżQHG class.â€?128 Moreover, the court noted, â€œNotice via Twitter is a form of individual notice (akin to notice via email).â€?129 However, the court overlooked the fact that tweets are not truly â€œindividualized messages:â€? The list of recipients can include not only those who have opted
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123. See, e.g., Browning, supra note 44, at 184 (â€œ[T]he rapid spread and ubiquitous nature of social networking sites, coupled with growing acceptance of them abroad as an alternative means of serving parties with legal documents may soon alter the notion of just what constitutes valid service here in the United States.â€?); Eric Michael Liddick, <RXÂśYH%HHQ6HUYHG/2/,V6HUYLFH7KURXJK)DFHERRN Really Possible?, 56 L A . BAR J. 5, at 341 (Feb./Mar. 2009), available at http://www.lsba.org/documentindex/publications/Journal-Feature3-February2009.pdf (â€œIf jurisdiction in this country can allow service by publication, surely â€˜service by Facebook,â€™ with the addition of adequate safeguards, could become a legitimate form of substitute service of process that comports with basic notions of due process.â€?). 124. See, e.g., John Browning, 'LJJLQJIRUWKH'LJLWDO'LUW'LVFRYHU\DQG8VHRI(YLGHQFH)URP6RFLDO Media Sites,â€? 14 S.M.U. S CI . & TECH. L. R EV. 3 (Summer 2011), and Browning, supra note 45, at p. 39 (citing a 2010 survey by the American Academy of Matrimonial Lawyers that revealed that 81 percent of respondents reported using social media evidence in litigation). See also John Patzakis, 689 3XEOLVKHG&DVHV,QYROYLQJ6RFLDO0HGLD(YLGHQFH, NEXT G ENER ATION E D ISCOVERY L AW & TECH BLOG (March 14, 2012) www.x1discovery.com/blog (visited Apr. 9, 2012) (discussing the fact that in 2010 and 2011 alone, there were 689 published decisions in which evidence from social networking sites was involved). 125. -HUP\QY%HVW%X\1R&9&0'&):/6'1<'HF available at KWWSZZZVFULEGFRPGRF-HUP\QY%HVW%X\1R&Y&0'&)6'1< Dec-06-2010. 126. ,G 127. ,G, 2010 WL 5187746 at *2 (citing F ED. R. C IV. P. 23(c)(2)(B)) 128. ,Gat *6. 129. ,G
VOLUME 2, I SSUE 2
7/3/12 7:57 AM
This issue of the Journal covers Facebook service, Judgespeak and more.