Attempting to align the Texas legal system with current realities, effective December 31, 2020, Rule 106 of the Texas Rules of Civil Procedure is amended to allow substitute service by “social media, email, or other technology ….”  Indeed, any plaintiff faced with the previous options for substitute service (essentially, publication in a physical newspaper or posting a note on the courthouse bulletin board) sees the value in modernizing the rules for service of process.  Nonetheless, the new rule and comments to the rule are sparse in guidance and arguably create more problems.

The comments to amended Rule 106 state, “a court may, in proper circumstances, permit service of citation electronically,” but they provide no real guidance as to the standard of evidence required. Tex. R. Civ. P. 106 (cmts).  Thus, it may fall to plaintiffs to educate the judiciary on the technology proposed for substitute service, its limitations and capabilities, and how to prove a defendant regularly or recently used that technology.  This, in turn, may open a Pandora’s box of privacy issues, including what role (if any) social media providers may play if they are expected to share user membership or activity information.

The comments also state that the court should “consider whether the technology actually belongs to the defendant and whether the defendant regularly uses or recently used the technology.”  Tex. R. Civ. P. 106 (cmts).  This implies that a defendant could be served by email or a social media account, but the text of Rule 106(b)(2) is silent with regard to the defendant’s ownership of the utilized technology.  Surely, if a celebrity posts about a class action lawsuit on their Twitter feed that would not “be reasonably effective to give the defendant notice of the suit,” simply because the defendant follows the celebrity’s Twitter feed. But, what if that defendant retweeted the post?

The rule is also silent as to joint or multi-user accounts, profiles, or emails, and the possibility of an authorized user deleting the email/service of citation prior to the targeted defendant reading it.

Despite its shortcomings, amended Rule 106 is clearly an overdue step toward embracing technology.  Even before the pandemic relegated a good portion of the country to virtual concerts and Zoom happy hours, many were already “living” online.  Indeed, this rule change may be helpful for companies or employers frustrated by evasive former employees.  Consider an employee who failed to update their home address, left the company, and subsequently began competing in violation of their non-compete agreement.  Serving that employee with a cease and desist letter or the petition may prove difficult, especially now when many people are working from “anywhere.”  This amended rule may provide the opportunity for an employer to simply serve the former employee through the former employee’s LinkedIn or Facebook account.

Amended Rule 106 signals a recognition that communication methodologies are changing.  Employers should be cognizant of their social presence and how individuals managing the company’s online interactions handle communications (legal and otherwise).  Jackson Lewis attorneys can help employers develop policies regarding social media and technology use, including cybersecurity, to better manage their workforce and communications in this dynamic environment.