At Deutsch Kerrigan, we pride ourselves in keeping up with the latest developments in technology. We believe it’s our duty to make things as easy and as cost-efficient as possible for our clients. Now comes news out of New York that service of process via social media likely is the wave of the future.  This trend could reduce the cost of formal service and help move cases to a quicker resolution.

In a first-of-its-kind court ruling, a Queens Supreme Court judge has allowed a lawsuit to be served through the messaging service “WhatsApp.” The case involved a $34,000 men's Patek Philippe Nautilus watch that the plaintiff purchased, believing it to be genuine. Per court records, the purchase was negotiated and finalized through the Chrono24 website.

The buyer later discovered through a local retailer that the watch was a fake. His purchase contract allowed him 30 days to return it, but the seller refused to give him a refund. He filed suit in the Queens Supreme Court, but he could not serve the defendant after multiple failed attempts. When he attempted service at the address on the original package, he discovered that this, too, was a fake.

Although the law usually requires service of process either in person or by mail, the trial court allowed service via social media.  The trial court reasoned that, “[H]ere it has been shown that it is impracticable to serve the defendant through traditional means,” and since “the parties were able to communicate successfully via WhatsApp, ... the court finds that service should be made via WhatsApp and a local Queens newspaper.”

Trial courts have previously allowed service through Facebook, but this is the first time a judge has allowed service through WhatsApp. In March 2018, a Florida federal judge also allowed the Justice Department to surveil another WhatsApp account in a pending criminal probe.

Facebook Service

As far back as 2014, some judges have allowed service by Facebook. Here too, New York was in the vanguard. In September of 2014, a Staten Island Magistrate allowed a man seeking to end his child support payments after both his son and daughter turned 21 to serve his ex-wife through her Facebook account after she moved from her former home leaving no forwarding address. Like the WhatsApp case, the trial court likewise held that it was “impracticable” for the plaintiff to serve his ex-wife personally or by taping a copy of the suit to her door, or by mailing it to her, or by attempting to serve her through someone at her home or business. The judge noted that, “[D]espite the absence of a physical address, [plaintiff] does have a means by which he can contact [defendant] ... namely the existence of a social media account.”

New Free Service App

For individuals wishing to file a small claims lawsuit of up to $25,000, a new mobile phone app, DoNotPay, claims to be able to serve the defendant for free just by pushing a button. The app itself is also free, but only available through the Apple app store. Supposedly it can be used anywhere in the United States and the United Kingdom.

The app itself comes with a disclaimer that it does not review a user’s input information for accuracy. Nor does it draw legal conclusions or provide opinions regarding the user’s selection of forms. In fact, when signing up for service, users must agree to indemnify the app’s manufacturers from any claims “arising out of [the user’s] negligent acts or omissions.”

This new app raises not only ethical questions, but also practical ones, such as:

• Does the app represent the unlicensed practice of law?
• What if the service the app provides fails to do what it claims to do?
• What recourse do users have if the service results in unfavorable consequences due to an app error?

Obviously, this latest technology is too new for case law to exist regarding these and other issues, but it won’t be long until courts are ruling on this and other service apps.