A Michigan Court Grants OLC's Request to Serve a Subpoena via Facebook
For Immediate Release
| Posted Mar 16, 2012
In an age of instant communications and interconnectivity, the rules of judicial and legal process have ventured into a new arena of service of process-—social media.
On March 16, 2012, the Kalamazoo County District Court issued a unique and first-of-a-kind order granting the law firm of Outside Legal Counsel PLC the ability to serve a trial subpoena through the social networking site Facebook. The subpoena seeks to have a critical witness, a salesman for the opposing party, appear at trial to testify.
Under Michigan law, court orders and subpoenas issued on witnesses and litigants have long been served in person by a process server, sent via certified US mail, or published in the legal notices section of a newspaper. However, the legal requirement for service of a subpoena in Michigan is that the process used must be “reasonably calculated under all circumstances to afford notice.” With Facebook users checking their profiles, timelines, and messages numerous times a day, sending a subpoena via Facebook is likely more “reasonably calculated” to reach a person than serving court papers in another method.
“The practice of law has to, absolutely has to
, keep up with technological and social advances,” states Philip L. Ellison, the OLC attorney who sought the order. “The way individuals communicate, interact, share information, and conduct business is changing all the time."
The order required that “a scanned copy of the subpoena in Adobe PDF format” be sent “via the social networking site Facebook, with a screenshot of the sent message to be filed with the Court.”
Ellison, a litigator with civil cases throughout Michigan, believes the District Court’s order recognizes that changes in society should mean changes in traditional legal processes. "Change is inevitable and available communication tools should be used to their fullest,” states Ellison
According to Facebook, there were on average 483 million daily active users in December 2011
Background of the Case
On behalf a young couple with two small children in Kalamazoo County, Outside Legal Counsel PLC filed a lawsuit against Jack’s Wholesale Windows and Design of Schoolcraft, Inc alleging the company sold and installed improperly measured custom-made windows and failed to honor its expressed and implied warranties.
OLC conducted a deposition of the salesman whose testimony contained several key admissions relevant to the DiPiero’s claims. OLC sought to have the salesman testify at trial by compelling his attendance with a subpoena but the salesman could not be found by local process servers when it came time to serve the subpoena.
Ellison, the attorney representing the DiPieros and a former web designer and communications consultant, filed a motion with the Court seeking permission to serve the subpoena by alternate means, including by mail, posting a copy on the door of his listed address, and by Facebook. The Court granted the request.
It remains to be seen if the salesman will defy the subpoena to appear.
The trial is set for March 23rd at the Kalamazoo County District Courthouse in Portage.
A copy of the order can be downloaded here
Philip L. Ellison, MBA, JD, Esq is an attorney, business counselor, and civil litigator with Michigan-based Outside Legal Counsel PLC. Visit his online profile at www.olcplc.com.