Thursday, June 10, 2010

More on discovery of social networks: Subpoenas to websites proving to be difficult

A few weeks ago I discussed the discovery of social networks (Facebook, MySpace, etc.) in employment cases. EEOC v. Simply Storage Management concerned discovery requests by an employer for a claimant’s social network pages. Rebuking any claims of an infringement of the plaintiff’s privacy, the court stated:

The production here would be of information that the claimants have already shared with at least one other person through private messages or a larger number of people through postings. As one judge observed, “Facebook is not used as a means by which account holders carry on monologues with themselves.”

In Crispin v. Christian Audigier, Inc. (C.D. Cal. 5/26/10) [Hat tip to Eric Lipman at Legal Blog Watch, which includes a link to the opinion], a different federal court confronted the issue of the discovery of social networks from the websites themselves via a subpoena. Most of the 37-page opinion deals with the technical issue of whether and to what extent third-party providers such as Facebook are covered by the Stored Communication Act. What is of interest, though, is the distinction drawn by the court based on privacy expectations and privacy settings.

Essentially, social networks offer three possible types of information:

  1. Information made public via a social network—such as something posted on one’s Facebook wall or on Twitter).

  2. Information not readily available to the general public via option privacy settings.

  3. Private messages passed between users of the social networks, with the website used merely as a conduit to facilitate the private communications.

Only the first category may be discoverable via a subpoena, while the latter two may be worthy of protection by the provider:

With respect to webmail and private messaging, the court is satisfied that those forms of communications media are inherently private such that stored messages are not readily accessible to the general public…. Those portions of the … subpoenas that sought private messaging are therefore quashed. With respect to the subpoenas seeking Facebook wall postings and MySpace comments, however, the court concludes that the evidentiary record … is not sufficient to determine whether the subpoenas should be quashed. The only piece of evidence adduced was a Wikipedia article stating that Facebook permits wall messages to “be viewed by anyone with access to the user’s profile page” and that MySpace provides the “same” functionality. This information admits of two possibilities; either the general public had access to plaintiff’s Facebook wall and MySpace comments, or access was limited to a few.

What are the lessons to be learned from this case?

  1. This case does not provide much in the way of relief. The prize isn’t information that is already publicly available, since you can just go to Facebook and get that information on your own. The prize is the private information to which you do not have access, and which this court suggests is protected from disclosure.

  2. The Stored Communication Act is very technical, and makes it very difficult to obtain any stored information directly from a social network or Internet provider without the users written consent.

  3. Provided that you are seeking information about a party to the litigation (for example, the plaintiff), you will be much better served simply asking for it in a Rule 34 document request. If the information is no longer accessible, a court can compel the party to sign a release so that you can seek the information directly from the website without having to worry about the Stored Communication Act. In other words, if the information had been requested directly from the party instead of trying to get it from the website, the Stored Communication Act is not an issue, and this case likely has a different result.

Bottom line – if the lawyers handling your employment case are not on top of these issues, you are missing a valuable piece of the puzzle in putting together your defense.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or