So...Can you Subpoena Someone's Facebook Page?

I don't know the answer to this question, but an order issued by the Northern District of Illinois in the context of an AOL subpoena gone awry sheds some light on the issue.  (The case is Thayer v. Chiczewski, 2009 U.S. Dist. LEXIS 84176 (N.D. Ill.; Sept. 11, 2009). Access the order [pdf] here.)

Background:  Plaintiff Andy Thayer sued the City of Chicago and its police officers alleging that the city wrongly arrested him for voicing his dissent against the Iraq war (in 2005).  Defendants issued a subpoena to AOL seeking email messages from plaintiff's account.  Defendants identified certain key words AOL could use to narrow down the relevant emails.  Plaintiff and AOL both objected on numerous grounds.  (I would think the subpoena should have been issued through federal court in Virginia, but everyone ultimately abandoned the lack of jurisdiction argument.)  Defendants issued a modified subpoena.  Plaintiff successfully brought a motion to quash this modified subpoena.  In granting plaintiff's motion, the court suggested that the parties negotiate the appropriate scope of the subpoena.  Defendants issued a second modified subpoena.  AOL in response reiterated its previous objections and stated based on its personal knowledge that AOL did not "maintain any email on its computer servers that is not directly accessible to the user of the mail screen name."  Defendants then filed a motion to compel.  

Procedural Wranglings:  The court directed AOL to respond to defendants' motion to compel.  In response, AOL did not respond, but plaintiff's counsel filed a joint response to the motion advising that neither plaintiff nor AOL had access to the requested email.  Plaintiff also sought to recover attorney's fees due to being forced to respond to a subpoena for material that defendants "knew did not exist." 

That's when things went South. 

Several days after filing the joint response, plaintiff faxed the court a letter "promptly" advising the court of a "recent development": AOL did have emails responsive to defendants' subpoena after all.  Defendants then filed a reply, and plaintiff - in disregard for the applicable rules and without leave of court - filed a sur-reply attacking defendants' accusations of misconduct on the part of the plaintiff.  To date, AOL did not file any pleadings.  On September 10, after the flurry of pleadings from plaintiff and defendant, AOL finally filed . . . a letter through its counsel.  The letter advised the court that AOL had acted strictly in good faith.  The letter also advised that AOL receives approximately 350 civil subpoenas per year, has a standard procedure in place (of raising objections), and in this instance, AOL raised the initial objections, but when it took a second look, located relevant emails.

The Substantive Issue:   After recounting this procedural saga and chastising plaintiff and AOL, the court finally comes to the core question of whether AOL can be compelled to produce the emails:
Plaintiff and AOL have cited numerous cases supporting their position that the [Stored Communications Act, 18 U.S.C. 2701(a)(1)] prohibits an internet service provider, like AOL, from divulging to a civil litigant the contents of any communication that is carried, maintained, or stored on or by the services.  See, e.g., Federal Trade Commission v. Netscape Communications Corp., 196 F.R.D. 559, 561 (N.D. Cal. 2000) . . . These holdings are consistent with Congress's intention, in enacting the SCA, to protect from disclosure private, personal information that happens to be stored electronically . . . .  And it is clear that, at the heart of these decisions, lies the courts' interest in advancing the legislative intent to protect from unauthorized disclosure electronically-stored documents, which would have otherwise remained private.  See, Id. citing Theofel v. Farey-Jones, 359 F.3d 1066, 1073-74 (9th Cir. 2004).

These holdings are useful to the extent that [defendants' subpoena], if enforced, would result in the production of such private and personal documents.  The instant case is distinguishable, however, because [defendants' subpoena] is targeting, largely, documents that [plaintiff] would be required to produce if he had not deleted them from his email accounts.  But while [plaintiff] cannot retrieve these emails from his accounts, [defendants have] presented evidence indicating that AOL does have access to these deleted emails.  Importantly, the SCA permits the disclosure of otherwise protected communications, if the subscriber, or the author or the intended receiver of the communications gives his consent.

So, ultimately the court concludes that AOL can be forced to produce the emails in question since plaintiff should have produced them in the first instance?  I'm not familiar enough with the statute and precedent to say for sure, but the court's conclusion that AOL could be required to produce the emails since plaintiff should have produced them seems off. 

In any event, the decision contains a slew of interesting points that are relevant to civil litigants seeking emails, Facebook page contents, etc.  Along with Theofel v. Farey-Jones and other decisions, it belongs on the reading list for people who may have occasion to subpoena emails and other electronic communications in civil litigation. 

Coming back to the title of the post: "can you subpoena someone's Facebook page in civil litigation"?  I don't know.  On a related note, Facebook pages were subpoenaed in a Virginia worker's comp dispute and Facebook successfully resisted the subpoena. [link]  In that case the plaintiff - whose Facebook materials were sought - consented to the disclosure of the material in question.  Interestingly, the court ruled that Facebook could not be compelled to produce the materials, although there were jurisdictional issues in that case as well.  Also, it's not clear (to my knowledge) whether all Facebook (Twitter or other) communications are treated similar to email for purposes of the SCA and other statutes. 

Finally, the decision contains some teaching to service providers as to what not to do.  AOL ended up in the court's cross-hairs because it wasn't terribly diligent in its initial responses.  Also, it made statements based on its "personal knowledge" that turned out to not be true.  That's an obvious no-no.

Added:  one way to get access to a Facebook page is from a friend of the person whose page you are trying to track down.  There are some ethical issues here, as noted in the Philadelphia Bar Association report linked in this post.

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