New York judge allows ­service of process via WhatsApp

If you're a trial attorney, then you're likely well aware of the impact of social media on all aspects of litigation. The repercussions of the online activities of litigants, witnesses, jurors and others can have a dramatic effect on litigation cases. Social media's reach through all stages of a case is inescapable, from the very start of a litigation matter to the very end. I regularly cover these issues, whether it's the mining of social media evidence for trial, researching jurors online, or using social media to effect process. It's the latter issue that I address in today's column in light of a ruling handed down earlier this month in Queen's County (much thanks to Rochester Social Media Lawyer Scott Malouf for bringing it to my attention). Effecting service of process using social media platforms is nothing new, and in many cases, the platform of choice has been Facebook. The first time I wrote about this was in October 2014. At that time, two different judges had issued orders permitting service upon litigants using Facebook: a U.S. Magistrate judge for the Eastern District of Virginia (Whoshere, Inc., v. Gokhan Orun d/b/a/ WhoNear) and a New York family court judge (Noel B. v. Anna Maria A., Docket No. F-00787-13/14B). Then, in March 2015, another New York judge jumped on the bandwagon and permitted service via Facebook in a matrimonial case (Baidoo v. Blood-Dzraku (2015 NY Slip Op 25096)). Next, in 2016, I wrote about Ferrerese v. Shaw,15 CV 3738 (ARR) (CLP), where U.S. Magistrate Judge for the Eastern District of New York Cheryl L. Pollak permitted an alternate method of service via Facebook, but also required the plaintiff to attempt to effect service using other methods as well. Most recently, I covered this issue in June 2017 when I wrote about Axberg v. Langston, Docket No. MRS-C-157 (2016). In this post-adoption case, as reported in the New Jersey Law Journal, Judge Stephan C. Hansbury, Morris County P.J. (ret.), considered the issue of whether service of process could be effected via Facebook and concluded that service via Facebook, and Facebook alone, was a sufficient method of service. Which brings us to the case at hand - and a different social media platform. In this case, Queens County Supreme Court Justice considered whether service could be effected using WhatsApp, an online and mobile messaging tool that has increased in popularity in recent years. The plaintiff in this case alleged that the defendant had defrauded him via an online sale. According to an article in the New York Post, a Vienna resident, Ahmed Alzaabi, bought what he believed was a genuine 2011 men's Patek Philippe Nautilus for $34,000. The watch was purchased from a man named Janoton Timothy Jaskon through a website called Chrono24. The terms of the purchase were negotiated via WhatsApp. When the plaintiff received the watch, he learned that it was a fake and was unsuccessful in his attempts to return it. As a result, he filed suit in Queens County Supreme Court. After attempting to serve process via the return address on the package, he learned that it was a nonexistent address. The plaintiff then sought to serve process via WhatsApp, and the court granted the motion on the grounds that other more practicable methods of service had been exhausted: "(H)ere it has been shown that it is impracticable to serve the defendant through traditional means.However, the parties were able to communicate successfully via WhatsApp. Thus, this court finds that service should be made via WhatsApp and a local Queens newspaper." So, once again social media has altered the litigation landscape. In today's digital world, where communication occurs and business is conducted online, traditional service of process methods aren't always sufficient. Creativity and flexibility are required in order to ensure that litigants receive their day in court. Fortunately, forward-thinking judges are stepping up to the plate, as is evident from the judge's thoughtful and appropriate ruling in this case. ----- Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book "Cloud Computing for Lawyers," coauthors the ABA book "Social Media for Lawyers: the Next Frontier," and co-authors "Criminal Law in New York," a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycase.com. Published: Thu, Dec 06, 2018