Tag Archives: process

FTC can serve foreign defendants via Facebook

FTC v. PCCARE Inc., 12 civ-7189 (S.D.N.Y. Mar. 3, 2013) is a very strange case because it shows how service of process might be altered and in what circumstances.  In this case, the FTC wanted to be able to serve documents other than the Summons and Complaint via Facebook or e-mail.  The Southern District of New York granted this request.

This is a very strange case.  Generally, the Hague Service Convention has guidelines detailing how abroad defendants may be served.  The Hague Service Convention doesn’t expressly authorize service on foreign defendants by email or social media accounts.

So why could you serve documents a foreign defendant over Facebook?

The court explained that “A court in this district has held that the Hague Service Convention only applies to the initial service of process, not subsequent documents.”  See SEC v. Credit Bankcorp., Ltd., 2001 WL 666158, *4 (S.D.N.Y. Feb 14, 2011).  In addition the court relied on Federal Rule of Civil Procedure 4(f)(3), whereby it stated,

a Court may fashion means of service on an individual in a foreign county, so long as the ordered means of service (1) is not prohibited by international agreement; and (2) comports with constitutional notions of due process.”  SEC c. Anticevix, 2009 WL 361739, at *3 (S.D.N.Y. Fec. 13, 2009).

The court reasoned that federal courts need to keep an open mind about technology.

The court acknowledges that service by Facebook is a relatively novel concept, and that it is conceivable that defendants will not in fact receive notice by this means.  But, as noted, the proposed service by Facebook is intended not as the sole method of service, but instead to backstop the service upon each defendant at his, or its, known email address. And history teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.

via FTC can serve foreign defendants via Facebook, federal judge rules – ABA Journal.

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In Minnesota, Amendments to the Rules of Civil Procedure Highlight Proportionality

On February 4, 2013, the Supreme Court of the State of Minnesota adopted amendments to the Rules of Civil Procedure, including those affecting discovery.  Of particular note were amendments to Rules 1 and 26.  Specifically (and significantly), Rule 1 was amended to state that it is the responsibility of the parties and the court to assure proportionality throughout the litigation.  Accordingly, Rule 1 now states (new language is underlined):

These rules govern the procedure in the district courts of the State of Minnesota in all suits of a civil nature, with the exceptions stated in Rule 81.  They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.

It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues.  The factors to be considered by the court in making a proportionality assessment include, without limitation: needs of the case, amount in controversy, parties’ resources, and complexity and importance of the issues at stake in the litigation.

Similarly, in addition to other significant amendments to Rule 26, Rule 26.02(b) has been amended to require that the scope of discovery “comport with the factors of proportionality, including without limitation, the burden or expense of the proposed discovery weighed against its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”  While such limitations to discovery were previously acknowledged, the amended rule more strongly emphasizes the importance of proportionality.

Significant amendments to other rules were also adopted.  Notably, an order attaching “corrective amendments” was entered several days later.  Those orders are available HERE and HERE.  The newly adopted amendments become effective July 1, 2013.

via In Minnesota, Amendments to the Rules of Civil Procedure Highlight Proportionality : Electronic Discovery Law.

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