June 8, 2021

Can you be served with legal process by e-mail or Twitter?

Posted in Commercial Litigation by Gene Killian |

Time flies. It’s hard to believe that 15 years have gone by since my late friend and client Nick DeBald and I (both long-suffering Mets fans) attended Game 1 of the 2006 National League Division playoffs at now-demolished Shea Stadium. In the bizarre second inning of that game, Mets catcher Paul LoDuca tagged two Dodgers out at home plate on the same play. You can watch it here. All Nick and I saw was a cloud of dust. We had field-level box seats, but we were so far down the left-field line that we might as well have been in the parking lot.

The important lesson, for purposes of this post, is that just because you seem to be far removed from something doesn’t mean it didn’t happen. Mr. LoDuca recently learned about that in a different context involving allegations of slander that resulted in a $500,000 judgment against him.

During a 2019 podcast, LoDuca conveyed some…interesting… stories about veteran major league umpire Joe West. According to LoDuca, West had thrown him out of eight or nine games. LoDuca also claimed that his former New York Mets teammate, reliever Billy Wagner, bribed West into giving him a bigger strike zone by letting West use his 1957 vintage Chevrolet car.

West claimed that the statements were completely untrue, harmed his reputation, and might have prevented him from being voted into the Hall of Fame someday. All of this, according to West, resulted in substantial damages, in part because Hall-of-Famers command larger fees for appearing at public events. West sued LoDuca for defamation in New York state court. (By the way, the elements of defamation are, in general, a false statement published to a third party, causing harm.)  

Here’s where this becomes interesting. West’s lawyers couldn’t find LoDuca to serve him with the complaint, so they asked the Court for permission to serve LoDuca through an active e-mail address that LoDuca had made public through his Twitter social media account. The Court agreed.

As anyone in business who receives hundreds if not thousands of emails per day can attest, this is downright scary. LoDuca, who either did not see the email or did not pay attention to it, failed to answer the complaint. The court entered a default judgment on the issue of liability, and then held an evidentiary hearing with respect to damages. LoDuca did not appear at the damages hearing, either.

To establish his damages, West presented his own testimony; the affidavit of Wagner denying that the “bribe” had ever happened; the testimony of an expert in digital forensics; the testimony of an expert in "reputation management" and the effects of defamatory statements made on social media; and the testimony of a journalist and expert in public relations. (The Court declined to consider the Wagner affidavit.)

West argued that his damages were $11,898,000.00, based on an estimate of the expenses necessary to remove the LoDuca story from internet web sites or "push down" the story by emphasizing other, positive stories about LoDuca. The Court agreed that reputation management was necessary, but concluded that $250,000 was a more reasonable sum for retaining a public relations firm to create and implement a plan.  The Court also awarded $250,000 for emotional distress. You can read the decision here.

Not long ago, a lawyer friend told me that he wasn’t particularly concerned about defaults being entered against him, because judges always vacate defaults. Don’t count on it. Never ignore court papers, even though they may be improperly served, and make sure you check your junk email folder regularly. You never know what’s lurking in there.

Keep in mind, also, that in certain circumstances, defamation claims may be covered by insurance. Never assume that a lawsuit is not covered. But…that’s a topic for our other blog.