Social Networking Sites like MySpace and Facebook are an invaluable source of information in civil litigation–users’ pages often contain a wealth of personal facts, photographs, and videos, and links to other sites. This information can be extremely helpful for employers in employment-related litigation where there is typically a huge imbalance between the amount of information produced by the employer versus the employee.
On May 26, 2010, Central District of California in Crispin v. Audigier, Inc., Case No. 09-cv-09509 (C.D. Cal. May 26, 2010) addressed whether a defendant can subpoena Facebook and MySpace directly in order to obtain communications between the plaintiff and other parties.
The plaintiff had a Facebook and MySpace account and the defendants wanted Facebook and MySpace to produce communications between the plaintiffs and other parties. The plaintiffs argued that the messages were subject to the Stored Communications Act, 18 U.S.C. § 2701, et. seq., which prevents a third party from acquiring the information directly from the service provider.
The key for the judge was whether the messages sent over Facebook and MySpace were “private” or “public” communications. If the messages were public communications, like posted comments on Startribune.com, the information would not be protected by the Stored Communications Act. Here, the judge found that the message features on Facebook and MySpace were not public and therefore could not be compelled by a subpoena. Of course, the messages would be subject to ordinary discovery–that is, the defendant could request the information as part of its request for documents–but the defendant must request them directly from the plaintiff.
A final issue was whether wall postings (i.e., messages posted on a user’s Facebook or MySpace “wall”) were public or private communications under the Stored Communications Act. The judge determined that more information was needed, including the user’s privacy settings (i.e., whether every could view his “wall” or only the user’s “friends”), and remanded the issue back to the magistrate.
Even though social networking sites may contain game-changing information for employers faced with an employment-related suit, to ensure that the information is not lost or overlooked, it is important for employers to consult with counsel familiar with social networking discovery. Felhaber’s Labor and Employment or Litigation Section members are experienced with social networking discovery, and more than qualified to assist you.