Can You Subpoena Someone's Facebook Page in a Civil Case? [Revisited]

A while back I speculated as to whether you could subpoena someone's Facebook profile information in a civil lawsuit.  I blogged about a case involving a civil subpoena seeking AOL user information, and speculated as to whether a similar analysis would play out with respect to Facebook profiles and information. 

A federal court in California took a look at this issue, and concluded that Facebook messages and information that is not publicly accessible fall under the Stored Communications Act, and cannot be produced by Facebook pursuant to a civil subpoena.  (Here's my post at Professor Goldman's Technology & Marketing Law blog summarizing the decision.  The case is Crispin v. Audigier [scribd].)

The case involved copyright claims brought by a plaintiff who licensed his artwork to a garment maker.  The plaintiff claimed that the defendant-licensee used the copyrighted material outside the scope of the license and breached the license agreement.  The defendant-licensee issued a subpoena to Facebook seeking the plaintiff's Facebook wall posts, profile information, and communications with a third party.  The plaintiff moved to quash the subpoena, arguing that the Facebook messages, wall postings, and certain profile information fell under the Stored Communications Act and therefore could not be produced by Facebook pursuant to a
civil subpoena. 

The court largely agreed, although it remanded to the magistrate judge for the magistrate judge to address the factual issue of whether certain of the sought after information was publicly available.  To the extent the privacy settings on the profile page allowed the general public to access the information it could be produced by Facebook, but non-public information would be treated differently. 


The decision is worth reading, and illustrates the statutory complexities and the difficulties in subpoenaing someone's Facebook page in a civil case.  Judging from media reports of the use of social media evidence in civil lawsuits, you would think it is easy to subpoena this information from Facebook, right?  As this case makes clear, that's not necessarily true.  Of course, getting the witness to sign a waiver is one way to go about it, or getting the witness to actually access and produce the documents is another option, but these approaches are a bit more cumbersome than obtaining unfettered access through a subpoena to Facebook. 

For a good summary of this approach, check out this post ("Obtaining Records From Facebook, LinkedIn, Google, and Other Social Networking Websites and Internet Service Providers"), and the pdf linked in the post.
 
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