Serving Subpoenas! By Twitter?
A Bankruptcy Court Served a Subpoena Via Twitter. Will This Catch On?
In recent years, social media has slowly creeped its way into the legal industry, transforming decades-old practices. While some firms have turned to social media platforms to find new business opportunities, others are finding innovative marketing strategies and there are now “legal influencers.”
Courts have too, become creative with their use of social media, in some perhaps unexpected ways. Recently, for instance, the U.S. Bankruptcy Court for the Southern District of New York authorized served a subpoena via Twitter one of the founders of Three Arrows Capital, a Singapore-based cryptocurrency hedge fund, which is going through chapter 15 bankruptcy proceedings.
Courts documents show that while foreign representatives of Three Arrows were previously unable to serve subpoenas on the founders “as their whereabouts are unknown,” the founders were active online on their email and Twitter accounts.
To be sure, serving a subpoena via social media is a fairly new concept, and has only been authorized sparingly in the past. But experts say that it could become more common as the industry continues to adapt its proceedings to technological advancements.
“I think these recent decisions permitting service via social media and alternate means show how the judiciary and judges [are] coming up with approaches to address the challenges associated with service of process,” said Bobby Malhotra, member of Winston & Strawn’s E-Discovery & Information Governance practice group.
“While personal service I think is still the overwhelming norm, there are and there may be circumstances where a service by social media or alternate means is really the best available or viable option—or potentially the only option,” he added.
In fact, Malhotra pointed to other examples of service of subpoena being authorized over email, voicemail message and even fax. And such instances have slowly started picking up in recent years.
“As social media continues to penetrate every facet of our society, it will impact our legal system. There is this growing trend of service of process being accomplished through alternative means, and it may become more common,” Malhotra said.
Of course, while other exceptions could be on the horizon, broader adoption of alternative means of service may ultimately depend on amendments made to the Federal Rules of Civil Procedure.
And those could still be years away, said Brett Burney, principal at Burney Consultants and eLaw Evangelist at Nextpoint.
“I don’t see that there’s going to be a major change in this approach until the federal rules are amended to somehow say, this can be delivered by any means necessary, including electronic means,” Burney noted.
Still, judges turning to creative solutions could be just the “catalyst” for change needed, he added.
Of course, going forward, whether other judges follow the same approach will depend on the reliability—and security—of such alternative methods.
“I think it remains to be seen how courts and the legislature will balance litigants’ need for documents and information with due process concerns of ensuring notice, personal service,” Malhotra said.
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