During a recent bout of boredom, we discovered the Wikipedia page for “Service of Process.”  After reading through the standard fare for manner of service, we came across this interesting tidbit:

Courts in at least two Canadian provincial jurisdictions have allowed for substituted service via Facebook.

Service via Facebook?  Certainly, it can’t be legitimate to write, “You’ve been served,” on someone’s Facebook wall and have that hold up in a court of law.  We thought that this must be a case of a wiki author having fun editing a page to poke fun at Canadians, right?  Wrong, the Court of Quebec did in fact hold back in 2011 that Facebook messaging was an appropriate method for service of process.

In Boivin v. Scott et al., a Canadian plaintiff for whatever reason encountered difficulty serving a Florida resident.  In response, the Quebec court held (via Google Translate, mind you):

The only way for the plaintiff to the defendant to convey the original application is through his Facebook address. Indeed, it is a direct and convenient way to notify the defendant that proceedings are taken against her so she could prepare his defense and to be heard, which meets the main purpose of the service.

The court was certainly correct in that Facebook service would be direct and convenient – at least for the plaintiff.  The defendant gets to finally look forward to a Facebook notification that has nothing to do with Farmville.  Of course, that only applies if the plaintiff served the correct Facebook profile in the first place.

As technologically savvy as we may be, in our opinion, due process should never take a back seat to convenience.  There are reasons why personal service is preferred and that substituted service should only be used as a last resort.  The rules are designed to protect defendants, making sure they are properly notified of suits against them.

Service by Facebook, while convenient for the plaintiff, lacks these safeguards.

Facebook service simply has too many questions.  Here are a few that come to mind:

• Just because a Facebook profile looks to be that of the defendant, who can guarantee it is?  Facebook contains millions of accounts, many real and many fake.  Serving the Facebook account of “John Doe of Greenville, SC” does not assure that the correct John Doe was actually served.
• Not that plaintiffs would ever be so sinister, but what prevents a plaintiff from making a Facebook profile for the defendant he wants to serve for the purpose of service?  If you can make a Facebook page for God, making one for the defendant is not outside the realm of possibility. What safeguards exist to guard against such malfeasance?
• Lastly, even if a person is served to the proper Facebook account, how does one know that the defendant actively uses the account and would find the complaint?  Certainly, there are tons of people with Facebook accounts who haven’t accessed them in years.  The accounts still show as active even though they have not been officially de-activated.  Do we really want to equate Facebook profiles in the same vain as a last known address? Plus, what if the account is active, but the message ends up in the somewhat hidden “Other” mailbox?

With all these questions, service by Facebook is not a process we would feel comfortably advocating.  Unfortunately, however, we think that this may be the wave of the future.  At least one U.S. court has ordered service of process by Facebook message.  We expect many more to come.

Above, you’ll find the cover of Superboy #90, published way, way back in 1961.  With all this talk of surveillance and privacy in the news these days, we feel compelled to share this issue, which features Lana Lang using a “time-telescope” to spy on future Superman and Lois Lane. “This horrid time-telescope which looks into the future!” Lana exclaims to herself. “It reveals that when Superboy grows up into Superman, he’ll forget me for that reporter, Lois Lane. I’d better do something about it now!” The question: Would the images set forth on the time telescope be admissible in a court of law? We doubt it.

The former members of the historic punk group Black Flag are suing each other. Those are some depositions we’d like to see.  For more, read here.

Adam Davidson of The New York Times had an interesting piece recently on the practice of keeping and billing time. Of course, it goes back to lawyers. An excerpt:

The notion of charging by units of time was popularized in the 1950s, when the American Bar Association was becoming alarmed that the income of lawyers was falling precipitously behind that of doctors (and, worse, dentists). The A.B.A. published an influential pamphlet, “The 1958 Lawyer and His 1938 Dollar,” which suggested that the industry should eschew fixed-rate fees and replicate the profitable efficiencies of mass-production manufacturing. Factories sold widgets, the idea went, and so lawyers should sell their services in simple, easy-to-manage units. The A.B.A. suggested a unit of time — the hour — which would allow a well-run firm to oversee its staff’s productivity as mechanically as a conveyor belt managed its throughput. This led to generations of junior associates working through the night in hopes of making partner and abusing the next crop. It was adopted by countless other service professionals, including accountants.

Friend of the blog Walter Olson, himself of the Overlawyered blog, had a letter to the editor published in The Washington Post. Check it out.

Here’s a warning label on one company’s football helmet: “No helmet system can protect you from serious brain and/or neck injuries including paralysis or death. To avoid these risks, do not engage in the sport of football.” How about that? For more on that label, see this piece at the ABA Journal by Debra Cassens Weiss.

Finally, don’t forget that today is THE LAST DAY to submit your nominations to the ABA Journal for its Blawg 100 competition. For information on how to submit, see here.

Let us turn to Jewell v. Aaron’s, Inc., No. 1:12–CV–0563–AT (N.D. Ga. July 19, 2013), for another social media discovery request. You know how we love to talk about such things.

The request at issue, to be served on a “randomly selected” set of 87 opt-in plaintiffs in the overtime/wage class action, was:

Request for Production No. 4: All documents, statements, or any activity available that you posted on any internet Web site or Web page, including, but not limited to, Facebook, MySpace, LinkedIn, Twitter, or a blog from 2009 to the present during your working hours at an Aaron’s store.

At first glance, that seems like a relatively broad request, as it seeks production of all social media posts from 2009 to present.  (In fact, the phrasing of the request, particularly its reference to activity “posted on any internet Web site,” suggests that all comments to blog posts, newspaper articles, or any other website in general would also be responsive to the request.). But note that it limits the request to posts made “during your working hours at an Aaron’s store.”

Might that make the request more palatable to the court?

Let’s see.

In response to the Plaintiff’s objection to the request, the court noted as follows:

Plaintiff objects to the request as unduly burdensome because identifying, obtaining, and producing all statements posted on Facebook or other social media sites from 2009 to the present during work hours of all 87 sample opt-ins would be a “tedious and incredibly time-consuming task.” Plaintiff contends that responding to such a request would require Plaintiff’s counsel “to assist the opt-ins in making a day-by-day, hour-by-hour search of the websites, comparing the date and time of each posting with the schedule of workdays and hours to determine if they coincided.” By way of example, Plaintiff contends that Facebook does not contain a search function, Facebook posts do not contain a timestamp, and such information can only be obtained by “individually interacting with and clicking on each post.” As a result, Plaintiff “estimates” that such a task could require anywhere from 1,323 hours to 26,462 hours depending on the number of daily posts made by each opt-in plaintiff. Plaintiff offered no evidence to support these assertions.

The Court has attempted to verify the accuracy of Plaintiff’s assertions and the potential burden imposed by Defendant’s request. Facebook employs a feature that allows a user to download her Facebook data, including “timeline” information, “wall” postings, activity log, messages, and photographs directly from the website. Once downloaded, the user may view all posts/activity in a single document in chronological order with a date/time stamp.

Indeed. Defense counsel are catching onto this technique and sometimes asking Plaintiffs directly to download all of their Facebook data and produce it directly.

However, the Court didn’t buy it, noting that the “exemplar evidence” from the named Plaintiff “did not persuade [it] that the Facebook postings will show, contrary to Plaintiffs’ claims, that they were not forced to work through their meal periods,” which was apparently one of the issues raised in the case.  In coming to that conclusion, the Court agreed with the Plaintiff that “whether or not an opt-in plaintiff made a Facebook post during work may have no bearing on whether or not the opt-in plaintiff received a bona fide meal period as defined in 20 C.F.R. § 785.19.”

In the end, the Court found that the defendant’s justification was mere hope that they might uncover relevant evidence and that the burden imposed upon the opt-in plaintiffs would be too great.

Oh, well.

In the past several weeks, we have commented upon two cases involving a Facebook friendship and its effect on pending civil and criminal litigation. One matter involved a family law matter in which a judge was Facebook friends with the daughter of two competing divorce litigants. Another involved a criminal case in which a juror was Facebook friends with a relative of the victim of the homicide being prosecuted. In both of those cases, the appellate courts discussed generally the nature of a Facebook friendship, but they did not probe more deeply into the specifics of the Facebook friendships at issue. Certainly, the trial counsel in the underlying cases could have litigated the nature and depth of the social media connection more deeply (and in fairness, perhaps they did, but such details did not make it into the appellate opinion). This post will offer a few questions that can be asked to probe these issues more deeply.

When did the Facebook friendship come into being? This is an important question because the origin of the Facebook friendship in question is quite relevant. Did it occur years before the trial? Did it occur prior to or during the events being litigated? Was the friendship request instituted because of a familiarity brought about by the events being litigated? Or, did the Facebook friendship predate the events being litigated and its origin have little, if nothing to do with the matter being tried?

How can the Facebook friendship be characterized? Sometimes, judges, as local officials, maintain Facebook profiles, and it may be that throngs of citizens in the community have connected with their local officials via social media. Thus, it may be telling to know how many Facebook friends each party to the friendship has. Are there thousands, or are their dozens? This may make a difference. This is true even if the individuals are not public figures. Do the users accept every friend request they receive, or are they more discriminating? Have they simply connected via a Facebook friendship, or do they utilize that friendship to communicate further? Do they post on each other’s Facebook walls? Do they send private messages? If so, when, and how often? And, of course, have they ever communicated about the subject matter being litigated through social media?

Who instigated the Friendship request? This could also be important. Again, if one of the parties to the friendship is a judge or community figure, it may be that they are inundated with friend request, of which the friendship at issue was once one.  However, it may be that the friendship at issue was borne of a closer connection, and thus, the identity of the instigating party should be determined.

What is being published on the two profiles at issue? To adequately address this inquiry, one would need to know what the parties to the Facebook friendship might have learned from each other during the friendship itself. Are the friends able to see each other’s private profiles (which may not be accessible to members in the general public)? Have either of the parties to the Facebook friendship posted on their profiles about the events being litigated? Might one friend have seen relevant information about the case on another’s profile?

Have the two met in real life? It’s always important to determine if the parties have met IRL or, rather, if the Facebook friendship is evidence of an offline friendship, as well.

Accordingly, these are issues which should be addressed in any such inquiry.

As we previously noted, the deadline to nominate a legal blog to the ABA Journal‘s list is rapidly approaching:  it is August 9, 2013.

That’s THIS Friday, people.

The rules prohibit us from nominating ourselves, which is probably a good thing, as that spares us the embarrassment of doing so. We probably couldn’t resist the urge to do so if the rules permitted it, so thank goodness we can avoid the issue altogether.

As we’ve previously noted, there are many great legal blogs out there, and we hope that even if we are not your favorite that you will still participate in this process and nominate your favorite blog.  Some of our favorite legal blogs are:

• Popehat. Remind us to never, ever run afoul of Popehat’s Ken White, a criminal defense attorney and fierce defender of online free speech. He dedicates his time and his writing to skewering those who attempt to censor free speech on the Internet.
• The Drug and Device Law blog. The team behind this site, including Jim Beck, Stephen McConnell, Michelle Hart Yeary, John Sullivan, Eric Alexander, and Steven Boranian, clearly know their stuff.  In fact, their posts offer the type of exhaustive detail and extensive analysis that you typically don’t encounter on legal blogs. A fine resource, if you find yourself in this practice area. (Plus, McConnell knows his pop culture, so there’s that.).
• Torts Blog. Run by friend of the blog and law professor Alberto Bernabe, this is a site you need on your blogroll.
• Overlawyered. We’ve noted before that we’ve been reading Walter Olson’s Overlawyered blog for more than a decade. To be honest, we don’t know how Walter does it. He’s one of the most prolific writers and tweeters in the online legal world. A must read.
• The Law and The Multiverse blog. A blog analyzing legal issues in the comic book universe? Why didn’t we think of that? Run by James Daily and Ryan Davidson, this blog is not to be missed.
• Litigation & Trial. Every once and again, we like to leave our comfort zone and read a Plaintiff’s lawyer’s blog.  Well, there is none better than this one operated by Max Kennerly. We disagree with him, lots, in fact, but it’s always good to read opposing views.

You can complete the very brief nomination form here.  It will only take you a few moments.

Despite what you might think from reading our posts here at Abnormal Use, not all McDonald’s litigation concerns hot coffee.  As obsessed as we are with the subject, this revelation came as a bit of a surprise.  It is shocking to learn that in the post-Stella Liebeck era any non-coffee related information could be considering newsworthy – especially for a distinguished legal blog.  Thankfully, our eyes have been opened or else we would have missed out on these two incredible stories.

Back in July,  an intoxicated Florida woman was arrested after blocking a McDonald’s drive-thru in search of free Big Macs for breakfast. According to the Consumerist, the woman pulled up to the drive-thru around 6:00 a.m. and demanded two free Big Macs as retribution for past discrepancies.  After being told that Big Macs are not available for breakfast, the woman politely changed her demand to two free Egg McMuffins.  Sounds reasonable.  Unfortunately, McDonald’s balked at the idea of giving away free food and asked the woman to leave.  She valiantly responded by blocking the drive-thru until police arrived.  She was arrested for DUI and apparently taken to jail hungry.

Last week, a Georgia man called 9-1-1 after McDonald’s allegedly messed up his order.  According to reports, the man entered the restaurant and ordered 7 McDoubles, a McChicken, and an order of fries to-go.  When the man returned to his truck, he discovered that the employee placed not 7, but 6, McDoubles in the bag.    He then re-entered the restaurant and apparently got some “attitude” from the employee rather than his AWOL burger.  The man’s response?  Call 9-1-1 and report that his burger had been swapped with a serving of ‘tude.  The police were not fond of the man’s use of the emergency response system, arresting the man and having him spend a night in jail.

Even though these cases do not involve coffee, they share a common theme:  Mess with McDonald’s and expect to make the news.

Above, you’ll find the cover of Kid Eternity #16, published way, way back in 1949.  Note that Kid Eternity, apparently, “helps balance the scales of justice.” But what the heck is going on in the cover? Apparently, he doesn’t just metaphorically balance the scales of justice, he literally does it! Here’s what Wikipedia has to say about this hero:

The Kid was originally a nameless boy (who only ever remembered being called ‘Kid’ by his ‘Gran’pa’) who was killed when a U-Boat sank his grandfather’s fishing boat during World War II. Due to a supernatural mix-up, however, he was killed 75 years too soon (similar to the plot of the 1941 film Here Comes Mr. Jordan) at the time.To rectify the error, the Kid was brought back to life for another 75 years with the mission of upholding good in the world. He was given the power to summon any good historical or mythological figure or animal by saying the word “Eternity” as well as to use the same word to make himself material or immaterial and invisible. Kid Eternity was further assisted on his duties by the clerk who’d made the error, Mr. Keeper. He is sometimes shown summoning fictional figures, like Jean Valjean or the Witches in Macbeth. In Kid Eternity #2 he shows time travel ability.

Those are some pretty odd powers, we must say.

No fair! Taylor Swift now apparently knows the identify of the person who inspired Carly Simon’s “You’re So Vain.”

Without a doubt, the grossest news story of July is this one. The headline: “Flesh-eating maggots discovered in vacationing woman’s ear.”  Be forewarned. We read it earlier this week, and we’re still recovering. Can we sue anyone for mental anguish?

Lastly, Kristopher Tapley of Hitfix, in a prescient tweet, foresees the future of products liability litigation. Here we go again.

As I’m sure many of you know, one of the hazards of practicing products liability law, particularly in the area of toxic torts, is the dreaded document review. Our fellow asbestos lawyers out there will know exactly of what we speak. When litigating cases with vast stockpiles of old documents, there are typically unusual circumstances.  Determining whether relevant documents exist can be quite an ordeal, and of course, examining them can be even more difficutl. We here at Abnormal Use have reviewed documents in some cases dating back to the 1920’s, including legitimate carbon copies. It is always intriguing to discover what old documents companies still have lingering around their offices, especially in this day and age of document retention policies and predominantly electronic record keeping.

Reviewing these ancient documents is probably one of the least glamorous aspects of practicing products liability law. Often, such document reviews involve trekking to far away and obscure locales and spending days in extremely uncomfortable conditions – not to mention the actual rolling up of sleeves and doing the document review itself.

We recently attended one such glamorous document review at a paper mill in rural North Carolina – one of several paper mills we have visited in the asbestos litigation. The documents to be reviewed were housed in an un-air conditioned, one-room, old, metal warehouse containing approximately 300 ancient and rusted metal filing cabinets. Plaintiffs’ and defense counsel descended upon the warehouse for four days of tedious and laborious review of old documents. Perhaps suspecting the perils we faced, Plaintiffs’ counsel arrived with a large team of reviewers equipped with tailgating tents, coolers of food and drinks, and lounge chairs. Who would have thought?

It was hot. It was muggy. Due to the time limitations, we were forced to begin our review each day at 7:30 am and conclude at 9:00 pm each evening – just when we started seeing double from squinting at the old and faded print and when we felt as if our arms would fall off from pulling and pushing the old rusted metal filing drawers.

One day, a wasp flew up our pants leg as we exited the warehouse for a lunch break, and we were stung numerous times before escaping the insect’s wrath. Further, we also almost ran our car off the road at the entrance to the paper mill, when a bobcat suddenly darted in front of our car. Sadly, the only dining options in town consisted exclusively of establishments with drive-thru windows. Needless to say, four days of fast food meals three times a day leaves one feeling  subpar. The lodging options were also few and far between, and of those, most were mom and pop operations with which we are unfamiliar and somewhat hesitant to stay – but we’ll leave our post on bed bugs for another day.

But not all document reviews are in the country.  Once, we found ourselves at one such event in the heart of a major metropolitan city.  The building had some heightened security measures which made the lawyers’ ingress and egress somewhat of a hassle. The documents were stored in a few hundred bankers’ boxes on the fifth floor. However, I seriously questioned the designation of this area as being “the fifth floor” because there were no windows on this floor and getting there required taking several different elevators, one of which was the size of a train car, and only went down – but not to the ground floor where we exited the building.  Any comings and goings from the room by the lawyers was limited to certain portions of each hour and required an escort for security purposes. This review lasted several weeks and counsel was permitted to bring their copy services along for ease of copying the documents they wanted. Therefore, the document reviewing room was filled with, not only lawyers and their staff reviewing documents, but also a plethora of copy company reps who were endlessly feeding documents through their scanners and copiers that they had staked out at the precious few electrical outlets in the room.

At least that document review was climate controlled and was just a short walk from nearby restaurants.

While document reviews can be dull, they’re not all bad. Namely, they get you out of the office and take you to “exotic destinations” you otherwise probably would never voluntarily visit. So there’s that.

I was probably 10 or 11 years old when I first heard about the United States Federal Witness Protection Program.  It sounded so exotic to me, surpassed only in my mind by the actual spy program of the CIA.  My friends and I would daydream about what our name would be and where we would live if all of a sudden we were whisked away from our actual, “real” lives.  We’d play make-believe, blaming our little brothers for some minor slip of the tongue about their real names or city of origin that would make us move again, getting new names and new lives again. Unfortunately, some folks in the real witness protection program may also be thinking about a name and address change.  As reported by The Washington Post and other outlets like the Huffington Post, the U.S. Marshals Service seems to have lost track of about 2,000 encrypted two-way radios.  Oops.  According to The Huffington Post:

In interviews with the paper, some Marshals told The Wall Street Journal they were worried not only about the wasted money, but also about the prospect of criminals getting hold of the radios and using them to gain access to privileged law enforcement activities.

Yikes.  Now, the Marshals are saying that it might be a function of poor record keeping, rather than an actual equipment loss.  Nevertheless, they can’t really say one way or the other, a fact that may pose a security risk to those people who rely on the Marshals for protection.

And even if it’s just a matter of poor record keeping and not actually losing the radios, that probably should not give us any additional comfort.  Unless, of course, they use a different record-keeping system for the people they’re supposed to be tracking.

In every 1L Torts class, new law students encounter cases involving plaintiffs who slipped on banana peels. Each case assesses the liability of premises owners based on a variety of factors, such as the condition or location of the peel. But just how many rogue banana peels are out there, anyway? Maybe it is time for casebooks to start updating their material.

They can start with the case of the woman suing a steakhouse chain after slipping on a peanut.

According to a report out of the El Paso Times, a Texas woman is seeking $1 million from Texas Roadhouse after slipping on a peanut shell thrown on the floor by a patron. The restaurant passes out peanuts to patrons and permits the shells to be discarded on the floor. The woman claims that Texas Roadhouse is responsible for the shells and should have either warned her of their presence or removed them.

Aside from the peel/shell distinction, this case is remarkably different than those read in law school. For starters, unlike the banana peel cases, this case doesn’t involve a single item mistakenly left on the floor. For anyone who has ever dined at these “Texas-style” steakhouses, peanut shells are scattered throughout the floor. Their condition is open and obvious.

More importantly, this case involves an object known by the landowner to be on the floor. Questions involving the condition of the shell or how long it has been left on the floor are moot. Instead of debating such minutiae, the inquiry can shift to whether the shells constituted a hazard and whether the plaintiff should have been aware of their presence.

These are, of course, questions that we actually encounter from time to time in our practice.