By Richard Howell, Luke Gilman, & Harris Huguenard
Coming soon to your email or direct message inbox—“You’ve been served.” The modes of communication we rely on are continually evolving. In the 1990s, AOL introduced the distinctive sound of “You’ve got mail.” In the 2000s, Facebook introduced instant messenger, later Instagram. More recently, Twitter has become an official channel of government and corporate communication. Texas has now adapted the rules for service of lawsuits to the new reality of how we communicate.
On August 21, 2020, the Texas Supreme Court announced upcoming changes to the Texas Rules of Civil Procedure. Included in those changes is a ground-breaking modification to the rules regarding service of process. Service of process is the procedure by which a party gives official notice to another party of the initiation of a legal action against that party, such that a court takes jurisdiction over the claim and the other party is legally required to respond. As of January 1, 2021, litigants may serve a lawsuit upon a defendant by way of transmission to a defendant’s social media or email account.
Under the newly amended Texas Rule of Civil Procedure Rule 106, litigants may serve a defendant “electronically by social media, email, or other technology” if the traditional methods of service, such as personal service or substituted service through certified or registered mail are unsuccessful. In other words, service via social media or email requires court approval and will be permitted only upon a showing that service attempts in-person or through certified mail were unsuccessful. The Texas Rules of Civil Procedure have long recognized alternative methods of service when the traditional methods fail, such as service by publication in a periodical of general circulation where the defendant is likely to reside. The amendments to Rule 106 are reflected in the Texas Supreme Court’s August 21, 2020 order.
The new amendments expressly adapt that long-standing rule for new technologies. This change will make the commencement of the litigation process much easier for some plaintiffs. If a plaintiff is unable to serve a defendant through personal service or certified mail, this new rule will provide plaintiffs with a new means of effectuating service. This will be especially helpful for litigants that are trying to serve defendants for which it is difficult to establish a usual place of business or a usual place of abode.
For defendants, this change will make dodging service of process more difficult. It may, however, also have another unintended consequence. This new rule will place an additional burden upon agents of service of process to keep a closer watch upon their emails and social media accounts. The same can be said of corporate officers, directors, or other persons to whom service of process for a business organization would be permitted under the Texas Rules of Civil Procedure. In-house attorneys will need to advise and educate managers of corporate Twitter, Facebook, and other social media accounts to promptly notify them of any service attempts. Additionally, Rule 108 of the Texas Rules of Civil Procedure permits the service of out of state defendants, including defendants not licensed to conduct business in Texas, pursuant to Rule 106. That means, for example, emailing a Texas lawsuit to the officer of a small Vermont corporation may constitute sufficient service of process under the newly amended Rule 106. If the officer misses the email or social media message, it may lead to a default judgment against his or her business organization.
For more information about this rule change and protecting your organization against the pitfalls of this rule change, contact Richard Howell, Luke Gilman, Harris Huguenard, or your Jackson Walker attorney.
Richard A. Howell represents commercial clients in complex disputes that require a skilled and creative presence in the courtroom. Richard has served as the lead trial attorney for oil & gas industry clients, national and regional banks, and other businesses in many trials, as well as many cases that were resolved before trial. Richard has also represented many clients—including two pipeline operators, a national bank, a private equity company, a chemical plant, and a food distributor—in “emergency” actions to enjoin or avoid injunctions of business activities and actions to obtain receiverships over property.
Trial and appellate attorney Luke J. Gilman’s practice concentrates on litigation and arbitration with an emphasis on technology- and media-related disputes and internal investigations. Luke has developed particular areas of experience in First Amendment and defamation litigation, international and domestic arbitration, and technology-related disputes and investigations, in addition to a general commercial and contract litigation practice.
Harris Huguenard is a real estate and commercial trial lawyer. Harris is an advocate for clients throughout the United States working to prevent or resolve conflict efficiently and effectively. He has represented clients in courts throughout the country in matters including construction and oil and gas disputes.
The opinions expressed are those of the authors and do not necessarily reflect the views of the Firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.