It’s not always easy to serve process on individuals. This is especially true if they move around a lot or are otherwise difficult to find. So what do you do when traditional methods fail? The answer: try social media. Initially, the social media serve was only allowed with foreign defendants who were difficult to locate. Today, it is becoming more widely accepted.
In this episode of The Paralegal Voice, host Vicki Voisin interviews Erdal Turnacioglu from Weber Gallagher. Together they discuss the history of, when to use, and predictions for the social media serve. As always, stay tuned for Vicki’s practice tips where she discusses what to read to keep up with trends.
Erdal Turnacioglu is an attorney with Weber Gallagher in Warren, New Jersey, where he concentrates his practice in the areas of general liability, medical malpractice, and employment. He received his JD from New York Law School in 2006 and is admitted to both the New York and New Jersey bars.
Special thanks to our sponsors, Boston University, NALA, and ServeNow.
Advertiser: Welcome to the Paralegal Voice, where you hear the latest issues and trends in the world of paralegals and legal assistance by one of the best known paralegals in the industry, Vicki Voisin. A paralegal for more than twenty years, Vicki is dedicated to helping legal professionals reach their goals. You’re listening to Legal Talk Network.
Vicki Voisin: Hello everyone, welcome to the Paralegal Voice here on Legal Talk Network. I’m Vicki Voisin, the paralegal mentor and host of the Paralegal Voice. I’m a NALA Advanced Certified paralegal, I publish an e-newsletter titled Paralegal Strategies, and I’m also the co-author of Professional Paralegal, a Guide to Finding a Job and Career Success. You’ll find more information at ParalegalMentor.com. My guest today is Erdal Turnacioglu, an attorney with Weber Gallagher in Warren, New Jersey, where he concentrates his practice in the areas of general liability, medical malpractice, and employment. He received his JD from New York Law School in 2006 and is admitted to both the New York and New Jersey bars. Welcome, Erdal.
Erdal Turnacioglu: Thank you, Vicki, I’m happy to be here.
Vicki Voisin: We’re happy to have you. Now before we begin, I’d like to thank our sponsors. That would be Boston University, offering an online certificate in paralegal studies. if you’re seeking a professional credential or just want to further develop your skills, Boston University provides an affordable, high quality, 14 week program. Visit ParalegalOnline.Bdu.Edu for more information. And we have NALA, a professional association for paralegals providing continuing education and professional certification programs for paralegals at NALA.org. NALA is a force in the promotion and the advancement of the paralegal profession and has been a sponsor of the Paralegal Voice since our first show. And then Serve-Now, a nationwide network of trusted, prescreened process servers. Work with the most professional process servers who have experience with high-volume serves, embrace technology, and understand the litigation process. Visit Serve-Now.com to learn more. The goal of the Paralegal Voice is to discuss a wide range of topics that are important to the paralegal industry and also share with you leading trends, significant developments and resources you’ll find helpful in your career and everyday job. Guests are usually included to help explore timely topics. For that reason, I’ve invited Erdal to be with me today. Erdal, you came to my attention when I read your recent article titled Facebook Notification: You’ve Been Served. So I’d like for you to tell our listeners how you came to write that article.
Erdal Turnacioglu: Just as an initial matter, I’m part of the law practice division with the ABA. So some of the folks over at the law practice today, webzine, just contacted me or many of the members, asking if they were interested in contributing an article to their social media issue. So when I got that, I thought, e-discovery has been covered extensively. But how about something more along the lines of e-service of process? So I looked into it a little bit and it just took off from there.
Vicki Voisin: Now before we go any further, let’s discuss the traditional methods of service that most attorneys use and what has previously been done when most traditional methods didn’t work. So bring us up to date on that.
Erdal Turnacioglu: Traditional methods of service involve personal services on an individual or corporation. And for a corporation also with a secretary of state. Now, alternative methods of service, at least in New York for which I’m most familiar, include substitute of service, on a personal, suitable agent of discretion at the usual places, business, or abode. But it also includes nail and mail and also by publication.
Vicki Voisin: Okay, and publication’s a problem. People aren’t using newspapers like they were. So what we’ve done is we’ve entered the age of technology, and again, these traditional methods of service and even the methods of alternate service might not work in today’s world. So how would you explain that new phenomenon?
Erdal Turnacioglu: Well, let me just press this back by saying that in the vast majority of cases, traditional alternative methods of service have worked out just fine. Process servers have just done a fantastic job of getting served, and getting affidavits over to us to get filed in court. But as I referenced in the article, we’re continuously just becoming a more mobile society. Not just from the standpoint of an individual, but also corporations and other businesses are, as they say, in the Cloud.
Vicki Voisin: What about people who don’t have traditional addresses to be served at? That’s beginning to happen. I know that they don’t have landlines anymore. Things are really changing. Now I’ve been a paralegal for longer than I want to tell you, but we always did the service that would be the publication and that kind of thing. And people wouldn’t accept their mail, even though we’d send it certified, it would come back. So then we would do the publication and that also took a lot of effort and you had to be sure you got it done before the summons expired. So we had a lot to keep track of and we’re still going to have to do that. But what I’d like to know from you is how social media is changing these procedures that we’ve traditionally used to serve parties. And I know it’s happening slowly, but tell us about that.
Erdal Turnacioglu: Right. Well, just to pick up on what you were saying, right now I don’t think there’s going to be any significant changes and I don’t think there will be any significant changes for the next five to ten years if I were to guess and throw out some numbers. And I think it’s in part due to the attorneys themselves and even judges not really being comfortable with this new form of service. Attorneys, generally speaking, are risk-averse, and they don’t necessarily want to subject themselves getting these methods of service to be refused by a court. There are just significant risks for a lawyer to rely on this new form of service. That being said, I think that I footnoted one of the worst cases I mentioned in my article provided a good answer for this. As of 2014, according to the case, there were over 157 million Facebook users, and obviously there’s numbers growing every moment of every day. And of course, this number doesn’t take into account the other social media networks such as Twitter and LinkedIn. So I think that these are certainly trends to be focused on.
Vicki Voisin: What I’d like to know though is when did the use of social media for service of process actually begin. I don’t think it’s as new as we might think.
Erdal Turnacioglu: Well, we like to think of things in terms of being social media. I think that it really originates from the earlier forms of service by email. I think there were some cases from 2002 or 2003 regarding service by email on foreign defendants. But in terms of the social media, case law there were some from 20012 and 2013 and these dealt with service on the foreign defendants.
Vicki Voisin: And by foreign defendants, you mean defendants out of the country?
Erdal Turnacioglu: Correct, that’s right. And I think in the two cases I mentioned, one of them ironically enough was a Turkish individual. They were trying to serve somebody in Turkey and the second corporation was located in India. And for those cases, the plaintiffs were relying on the federal rules, which primarily dealt with allowing service as long as there was no international protocol against it. There, there was nothing in Turkey or in India that stated specifically that social media was not allowed so the court did not really have an issue allowing service by Facebook on these foreign defendants. And again, I think that last statement cannot be over emphasized. It certainly became a crucial consideration when the courts finally had to address service on domestic defendants – that is people that are located within the United States. The courts wanted to make sure that somebody using Facebook or whatever other social media account was on a dummy account and that the person that was with the dummy account would actually receive the notice of the lawsuit that was in conformance with the constitutional notice requirement.
Vicki Voisin: Okay. What I’m going to do now is take a short break for a word from our sponsors, and when we come back I want to ask you specifically how you know it’s not a dummy account. So we’ll be back. We’re going to take a word from our sponsors, Boston University, NALA, the Association of Legal Assistants and Paralegals, and Serve-Now, a nationwide network of trusted, pre-screened process servers. And when we come back, we’re going to continue our discussion with Erdal about technology’s impact on how parties are served. So don’t go away.
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Vicki Voisin: Welcome back to the Paralegal Voice. I’m Vicki Voisin, and my guest today is Erdal Turnacioglu, an attorney with Weber Gallagher in Warren, New Jersey. Erdal, before the commercial break we were discussing how technology has slowly changed the way defendants and other parties were served. We talked about how it was first done with foreign defendants and then the movement was to domestic defendants, meaning people living within the United States. You were talking about making sure that this wasn’t a dummy account when you were trying to serve someone by social media. How do you do that?
Erdal Turnacioglu: I think it just takes a little bit of investigation on the part of the plaintiff’s attorney or the paralegal who’s working for the plaintiff. That is that you have to make sure that the person’s actually using the account. Some of the cases I had mentioned in my article, I think there was the Lorri Fortunato case that I mentioned, where the court was uncomfortable with the idea of allowing service of the summons of complaint on this person’s Facebook account because there was no affidavit submitted by the investigator stating that this person was actually using the account. And I think that that’s the broad objection or fear that the courts have with service by social media. Certainly, when I mentioned this to some of the partners here at my firm – I was going to do an article on this – they were sort of incredulous and I think that’s the first and foremost aspect of it. Not only the fact that it’s the newest technology but you also have to do some investigation to make sure that the social media account is actually verifiable and in use.
Vicki Voisin: Well, with Facebook you can tell that they’ve been posting regularly or not. Whether they’ve put pictures up that might be applicable to proving that they were there if they’ve changed their cover photo and things like that. That would be the way you’d do it is if it’s actually being updated and taken care of that way. Now, Erdal, I’m assuming – and I’d like for you to verify this – that social media is used only after all traditional methods of service have been exhausted and only with special permissions of the court. Is that right?
Erdal Turnacioglu: Yeah, Vicki, that’s absolutely correct. You should only really consider service by Facebook when you’ve already attempted to use all the other methods, whether it’s by personal service, nail and mail, whatever other methods have proved to your jurisdiction. So New York, for example, after attempting these traditional methods, the CPOROS issued a file and motioned without notice to the other party, obviously, requesting that the court fashioned an alternative method of service and state all the means of service attempted. And again, the reasonable and diligent effort that you had made to serve the person by traditional methods and also, of course, the affidavit or other sworn statement regarding this notice to Facebook would be effectuated.
Vicki Voisin: Would there be any pitfalls related to service by social media? Is there any dangerous?
Erdal Turnacioglu: I think that the main danger would be that the person is not using the Facebook account or that they may have used it once upon a time and maybe it’s not necessarily a dummy account but it’s just not in use anymore and the person just does not get the notice that even the court reeled to fashion. But I think that what’s important to note there is that in a case I had referenced in my article, the court sort of recognizes this and notes that not only do you service a summons complaint by Facebook, but you would also serve a copy of the pleadings by regular mail at the last known address. That way you get a balance of the two methods of service.
Vicki Voisin: Okay. Well I do have a question that I thought of as I was getting ready for this, and I’m wondering if it would be helpful to include language in the contract between the two parties actually agreeing to service by means of social media in the event of litigation. What do you think about that?
Erdal Turnacioglu: Actually, it’s something that I never really considered. But certainly, crafty attorneys can certainly fasion a provision in a contract or an agreement to this effect. They do this with indemnification provisions and other choices of law or law provisions. As you mentioned before with the pitfall, you have to make sure that the defendant – whether it’s the other party’s an employee or business associate or even a husband or wife, however the agreement would be fashioned – is actually using the social media account. So my concern would be what would happen if that person or defendant switched over to active use of a different platform? Let’s say away from Facebook to LinkedIn. Does that mean that the Facebook account or service by Facebook is no longer valid? And do you have to have compliance people at the firm or the plaintiffs themselves actively are keeping a log of defendant social media use? These are some of the considerations I was thinking about.
Vicki Voisin: Right. Well, maybe you could just say by electronic means or common to the practice or something like that. I’m sure that there will be some crafty attorney who could come up with some wonderful language we could use.
Erdal Turnacioglu: Absolutely.
Vicki Voisin: So I do want to know what your prediction is about the use of social media in the future. It really is going to happen, right?
Erdal Turnacioglu: Yeah, I think so. It’s just becoming more and more available and used, whether it’s somebody on their laptop, iPad, iPhone, social media’s not going away. It’s just going to get bigger and bigger and while courts can try not to address it or deny applications, I think it’s important to note from some of the earlier court decisions reflecting on the fact that – to quote from one of the court decisions – history teaches that as technology and technological advances and modes of communications progress, the courts have to be open to considering your request to authorize service by electronic means. So just something that the legal profession has had to confront before with each new technology, whether by facsimile, email, or as now, social media.
Vicki Voisin: Okay. Now how do you view the paralegal’s role in this movement towards service by social media?
Erdal Turnacioglu: I think that the paralegal can be hugely instrumental. I used to be at a plaintiff’s firm, and I would say that for certain I would use paralegals all the time and paraprofessional legal assistance all the time and making sure that the process server was provided with the necessary information so that the service could be effectuated and the paralegals would certainly be able to follow up if there was issues that the process server was being faced with and making sure that diligent efforts were being made. So I think the paralegal is hugely instrumental in assisting the attorney in making sure that the summons and the complaint gets served.
Vicki Voisin: I know that’s one of the duties that I had that once everything was filed, it kind of landed on my desk and I had to make sure that that service happened in a timely fashion. Erdal, before we go, I do have a couple of questions for you. If our listeners would like to get in touch with you, how can they do that? And how can they locate your fantastic article?
Erdal Turnacioglu: Sure, thank you so much. They can reach me by my email at [email protected], or through my Twitter, @ErdalEsquire.
Vicki Voisin: Alright.
Erdal Turnacioglu: And for the article, it’s available at LawPracticeToday.org/Article/Facebook-Notification-You’ve-Been-Served.
Vicki Voisin: Alright. And I’ll be sure that that information gets included with the information that Legal Talk Network sends out about this podcast.
Erdal Turnacioglu: Great. And also, I just wanted to add in that as I mentioned before, I got asked by some of the people at the law practice division to write this article. And for disclosure, I’m part of the membership development committee for the law practice division. And I think that it’s just a great resource for people in the legal profession, whether you’re a paralegal, an attorney, a marketing coordinator or CLO. We have plenty of people who are involved, not only as attorneys but also as law staff that are part of our organization. I think they’ve received extensive and enormous benefits from being active members of the division.
Vicki Voisin: Okay. And they do that by going to the ABA’s website or is there somewhere else they can go for that?
Erdal Turnacioglu: Well, you can go on www.LawPractice.org. That’s the division’s website; you can find more information about it and the cost to join.
Vicki Voisin: Okay, great. Thank you for that information and thank you for joining me today. I really appreciate you updating us on this new trend. It’s so important that we at least be aware that the information is out there and this may be happening and if we need it, we should use it. So thank you for taking time out of your schedule, especially at this busy time of year.
Erdal Turnacioglu: Thank you so much for having me, Vicki. It’s been a pleasure. Happy holidays and have a great 2016.
Vicki Voisin: Thank you, same to you. Let’s take another short break now. Don’t go away because when I come back, I’ll have news and career tips for you.
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Vicki Voisin: Welcome back to the Paralegal Voice. We’re almost through with this program today and this is the time when I give you my practice tips and other information that is trending in our careers. I have to tell you that my practice tip for today is to first of all, pay attention and read about these new trends that are coming out. I do subscribe to several different blogs, and that’s where I see things like Erdal’s article about being served on Facebook. Take a look at some of those and be sure that you are really watching; ABA’s blog is a great one. Be sure that you know what’s going on that once you hear this maybe you copy the article and make sure that everyone in your office is reading it. Distribute it to your boss and so forth; just so that they know that these things are trending. And then, when you run across a service process where you are absolutely unable to find the defendant and to serve them, you can say, “You know, I think we can do this electronically. I remember that there is an article, I know I can find it.” You may have it in a file at your office or you may be able to Google it. Or, go to Legal Talk Network and find the podcast. So there’s just lots of information that’s out there. You should be able to know what’s going on. So that’s all the time we have today for the Paralegal Voice. If you have questions about today’s show, please email them to me. That would be [email protected]. And also, don’t forget to check out my blog, that’s ParalegalMentor.com/blog. And the resources that I’ve made available to you and there at my website, which is ParalegalMentor.com, have been designed them to help you move your career in the right direction, and that’s always forward. This is Vicki Voisin, thanking you for listening to the Paralegal Voice, and reminding you to always make your paralegal voice heard.
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Thanks for listening to the Paralegal Voice, produced by the broadcast professionals at Legal Talk Network. Join Vicki Voisin for her next podcast on issues and trends affecting paralegals.
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