In today’s social media age, Facebook and other social media platforms are quickly becoming invaluable repositories of discoverable data for attorneys. Subpoenaing Facebook to retrieve this data in a civil case, however, is not an easy task, mainly because Facebook and other social media companies rely on the Stored Communications Act (SCA) to quash civil subpoenas for account data. Facebook is particularly explicit on this issue, stating on its website that it will not honor civil subpoena requests on SCA grounds.

While recent civil opinions make it clear that Facebook has leverage under the SCA when determining whether to honor civil parties’ requests for evidence, Ehling v. Monmouth-Ocean Hospital Service Corp., however, suggests that attorneys and clients can work around these issues by using web collection tools and services that authenticate the content for legal purposes.

Let’s first take a look at the SCA’s background and a case where a civil subpoena was not enforced to compel the production of records from Facebook.

How the Stored Communications Act Can Complicate Facebook Data Collection

The SCA was passed in 1986 to provide Fourth Amendment-level regulations regarding when and how the government and other parties can acquire private subscriber information stored by electronic communications providers. Information covered under the SCA are “electronic communications” transmitted by “electronic communication services” that are in “electronic storage” and private. Under the SCA, electronic communications are defined as any transfer of “signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system,” while electronic communications services are “any services that provide their users with the ability to send and receive such communications.” 18 U.S.C. § 2510(12, 15). “Electronic storage,” on the other hand, covers either (i) temporary, intermediate storage incidental to transmission, or (ii) storage for backup purposes. 18 U.S.C. § 2510(17)(A-B). Parties violating the SCA can be held liable for damages.

At the time these definitions were drafted, however, legislators did not account for future technologies beyond what was available in the late 1980s, before both the World Wide Web and web browser were invented. Although several federal courts in 2008 acknowledged that AOL and YouTube were entitled to SCA civil subpoena safeguards, it wasn’t until Crispin v. Christian Audigier, Inc.—a copyright and contract case from California—that they extended these protections to the Facebook platform and Facebook private messages. Since then, Facebook has filed motions to quash on its own behalf for subpoenas for Facebook data, and courts have regularly granted them.

One early example of this is In re Request for Order Requiring Facebook, Inc. to Produce Documents and Things, where a judge granted Facebook’s request to quash a family’s previously-granted request to subpoena their deceased daughter’s Facebook account to prove that she did not have the state of mind to commit suicide.

How Web Content Collection Specialists Can Provide an Effective e-Discovery Workaround for Civil Parties

One federal district court case from New Jersey, however, makes clear that attorneys and clients can work around the Stored Communications Act if they are able to access an individual’s social media page and take captures of the evidence. In Ehling v. Monmouth-Ocean Hospital Service Corp., a hospital employee published a Facebook post that was openly critical of the way her hospital’s paramedics helped save the life of a gun shooter. Although the employee’s Facebook page visibility was restricted to just her Facebook friends, many of her co-workers had access to her page—including one paramedic who began sending screenshots of the employee’s posts to the hospital’s manager. Naturally, the employee was suspended, albeit with pay.

Although the employee filed a lawsuit claiming, in part, that her employer had violated the SCA in acquiring her Facebook post content, the court ruled in favor of the hospital’s motion for summary judgment. After determining that Facebook wall posts were electronic communications, Judge William J. Martini concluded that while the SCA can apply to private or restricted content, it does not apply when a party was granted access to the information under the SCA’s authorized user exception, which applies whenever access to a communication was authorized by a user of the service with respect to a communication intended for that user.

In the end, beware of “poking” Facebook with a civil subpoena for user records; you could be dealt a case-killing punch in response. Relying on an adversarial party’s duty to produce relevant evidence could also possibly encourage unchecked spoliation and further litigation.

Alternatively, Page Vault helps you avoid these issues by providing tools and services that can help you quickly and ethically collect Facebook evidence for litigation.

 

This post was authored by Eric Pesale, a legal contributor who writes regularly about legal topics for law firms, publications, and companies as the founder of Write For Law. He is a graduate of New York Law School and the University of North Carolina at Chapel Hill, and has been published in the New York Law Journal and Above the Law.  Eric can be reached at eric@writeforlaw.com or on Twitter at @writeforlaw.

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