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More electronic discovery on social media networks

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In contrast to the Supreme Court’s ruling last week on the privacy interest in texts (admittedly a narrow holding, but significant nonetheless) the U.S. District Court for the Central District of California recently held that a variety of social media content is not discoverable in a civil suit through a third-party subpoena (Crispin v. Audigier Inc., C.D. Cal., No. 09-9509, 5/26/10). 

In this copyright case, the plaintiffs sought subpoenas from several social networking sites.  The subpoenas sought:

[Defendant’s] basic subscriber information, as well as all communications between [defendant] and tattoo artist Bryan Callan, and all communications that referred or related to Audigier, CAI, the Ed Hardy brand, or any of the sublicense defendants.

This is broad, but a fairly standard approach in discovery.  The defendant moved to quash the subpoenas, arguing, among other things:

that they sought electronic communications that third-party Internet Service Providers (“ISPs”) are prohibited from disclosing under the Stored Communications Act.

The magistrate judge assigned to the case initially said that the Stored Communications Act did not apply, but the District Judge reversed, and held that the Stored Communications Act did apply, and thus necessitated further inquiry.  Notably, the court stated that:

Recognizing that all three sites provide private messaging or email services, the court is compelled to apply the voluminous case law cited above that establishes that such services constitute [an electronic communications service].  Moreover, the information the parties gave [the magistrate] establishes that Facebook wall postings and the MySpace comments are not strictly “public” but are accessible only to those users plaintiff selects.”

While the court decided that it didn’t have enough information in its hands to conclude that the subpoenas should be quashed, and sent the motion back for further consideration, the holding is provocative, and once again demonstrates the fluid ways in which social media messaging is viewed by the law. 

In some contexts, social media communication can be no different that a private e-mail.  In others, it can be viewed as a bullhorn to the world.  Worse, the situtation may vary depending on which court hears your case.  Thus, your best approach is to assume that everything you write in an electronic format may be discoverable — perhaps through a subpoena to a third party, perhaps only through discovery directly through you — so think about what you say before you hit enter.