You cannot adequately represent your clients in the 21st century unless you have some working knowledge of online social networking.
of the subpoenas . . . is reasonably calculated to lead to the discovery of admissible evidence as it is relevant to the issues in this case,” defendant faced another hurdle.15
courtroom. Judges are being forced to impose restrictions with very little guidance.1920
Te principal issue presented Some of the
social networking sites refused to comply, stating that there was no authority for defendant to subpoena the requested information.16
Agreeing with the third-party sites, who cited
the Stored Wire and Electronic Communications Act, 18 U.S.C. 2702 et seq., defendant admitted that it was effectively “stymied in its efforts to discover the information.”17 Facebook tends to resist subpoenas, and only provides
publicly available information absent consent from the account holder.18
However, the options for on-line social
networking expand every day, and each company will have its own policies and procedures for dealing with subpoenas and court orders. Furthermore, even those companies that have resisted subpoenas, like Facebook, may reverse their stated policies at any time.
Other Methods to Obtain Discovery Defendants may seek to depose plaintiff’s on-line
friends, and may further request that they provide access or hard copies of plaintiff ’s social networking pages, to the extent available to them. Importantly, social networking users sometimes do not
let the user engage full privacy settings on their sites; that is, the information posted on the site is available to everybody on the internet. Anything generally accessible is probably discoverable, and defendants do not need formal discovery procedures to point and click.
Social Networking at Trial Communication Devices Most courts appear to be dealing with the reality
of social networking on a very reactive basis. Given the relatively recent popularity of networking sites, courts and
rules committees have not yet addressed networking in the 15 Id. 16 Motion to Compel Production of Content of Social Networking Sites, docket entry 185, Ledbetter v. Wal-Mart Stores, Inc., et al., No. 1:06-cv-01958-WYD-MJW, (D. Colo. May 26, 2009). See also Mackelprang, n.7 (Facebook likewise refused to comply with a subpoena for private account information). Tis appears to be Facebook’s current position on the matter.
17 Ledbetter, supra, Motion to Compel, n.19. 18 See, e.g., Declan McCullagh, Facebook fights Virginia’s demand for user data photos (Sept. 14, 2009) <
http://news.cnet.com/8301-13578_3-10352587-38.html?tag=newsLeadStoriesArea.1>.
to judges is whether to allow lawyers, witnesses and jurors access to their cell phones that almost universally permit text messaging, if not internet access. With internet access, the user has direct access to read and post messages on sites like Twitter and Facebook. Some courthouses ban cell phones in the building, which
may prevent many problems from arising in simple one-day trials.21
Even so, unless a jury is restricted from accessing
their cell phones during lunch or breaks, or unless the jury is sequestered in multiple day trials, social networking problems are certain to arise.22 for that eventuality.
Attorneys should be aware of and plan
19 During author John Cord’s most recent trial in Baltimore County Circuit Court, Judge Judith Ensor advised the jury in opening statements that they were not to discuss or research the case in any fashion, including exploration of television, print or online media, and that they were not allowed to “post messages, texts or tweet, or anything else like that, and you [jurors] know what I am talking about—no funny business.” Buechler v. Mapp, No. 03-C-08-007338 (Aug. 26, 2009).
20 Finding that reporters could not use Twitter at trial, one federal Georgia judge recently held that Rule 53 of the Federal Rules of Civil Procedure precludes the “broadcast” of live-action tweets during trial. His ruling was directed at reporters, but could be interpreted to apply to lawyers, witnesses and parties. Martha Neil,Federal Judge Calls Courtroom Tweets Banned Broadcasts Under Rule 53 (Nov. 9, 2009) <
http://www.abajournal.com/news/article/federal_judge_calls_courtroom_ tweets_banned_broadcasts_under_rule_53/> (link to order included).
21 Posting of Marcia Oddi to Indiana Law Blog, Ind. Courts – Still More On: Managing the Electronic Communication Revolution in the Indiana Courtroom,
http://indianalawblog.com/archives/2009/08/ index.html (Aug. 11, 2009). Te Southern District of New York is testing a rule allowing preauthorized counsel to bring in electronic devices, and requiring all other attendees (including witnesses and jurors) to check their devices in the lobby. Id.
22 American Assoc. for Justice,Texts and “tweets” by jurors, lawyers pose courtroom conundrums (Aug. 1, 2009) <
http://www.justice.org/cps/rde/xchg/justice/hs.xsl/10049.htm>. Te Michigan Supreme Court recently banned all electronic communication by jurors while in the jury box and during deliberations. Id.
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