Get Consent and Avoid Sanctions
California Lawyer
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Get Consent and Avoid Sanctions

July 2012

Social networking sites such as Facebook, LinkedIn, and Twitter continue to enjoy massive growth, increasing the likelihood that these services may hold evidence useful to parties in civil litigation. For example, at the end of December 2011 Facebook alone claimed 483 million daily users, and even more active monthly users - 900 million to be specific. But many litigating parties and counsel fail to familiarize themselves with the requirements of acquiring relevant information that may be in the hands of such social media websites, and as a result highly pertinent or even dispositive evidence can remain uncollected.

Subpoena Requirements

Federal law, in the form of the Stored Communications Act (SCA) (18 U.S.C. §§ 2701-2712), controls access to most Internet-related data held by third parties. And most important, this law prohibits electronic communication service providers from releasing a customer's data without the customer's consent. (See 18 U.S.C. § 2702(b)(3).)

For this reason just about every social networking service in America regularly refuses to produce content of electronic communications. The SCA expressly prohibits a "person or entity providing an electronic communication service to the public" from "knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service." (See 18 U.S.C. § 2702(a)(1).) There are a few exceptions - most notably for law enforcement officers who have a warrant - but no exceptions exist for parties to civil litigation. (See Flagg v. City of Detroit, 252 F.R.D. 346, 350 (E.D. Mich. 2008).)

Normally, the first step in discovering the contents of social media accounts is to simply ask the account owner to voluntarily produce it. But if a litigant wants to double-check with a third-party electronic communications service to see if all relevant content has indeed been disclosed, things can get complicated, especially if the person who "owns" the account in question refuses permission.

Court-Ordered Consent

Though a party to a civil case may refuse to release electronic communications, there is a procedure to handle this problem. A litigant can ask the court to compel an opposing party's consent. (See O'Grady v. Apple Inc., 139 Cal. App. 4th 1423, 1446 (2006).) To maximize success, lawyers should take particular care in narrowly drafting the categories of requested account contents, to address the anticipated privacy objections. This is critical, because the majority of information in an account is sure to be irrelevant, and discovery is usually limited to admissible evidence or to materials "reasonably calculated" to lead to admissible evidence. (See Cal. Civ. Proc. Code § 2017.010.)

The issue of compelled consent was the focus of a recent decision from the Third District court of appeal in a celebrated criminal proceeding. (Juror Number One v. Superior Court, 2012 WL 2950184.) The case involved a juror who posted comments on Facebook during a criminal trial. The trial court's resulting investigation into possible juror misconduct included an order requiring the juror to execute a consent form sufficient to allow a search and release of his Facebook postings within ten days. The juror refused, contending that the order violated his privacy rights. The court held that the trial judge had authority to order the juror to execute a consent so Facebook could release the information.

Avoid Spoliation

Counsel should take extra care to avoid destruction of evidence. Though it is easy to alter or delete the contents of a social networking account, all parties and their attorneys have an obligation to preserve evidence. Last year a Virginia judge lowered the boom on a trial lawyer, sanctioning him more than $500,000 for spoliation of evidence; the offending lawyer had instructed a paralegal to advise their client to "clean up" his Facebook account to avoid adverse information from being discovered in a pending wrongful death case. (Lester v. Allied Concrete Co., 2011 Va. Cir. LEXIS 132 (Va. Cir. Ct. Oct. 21, 2011.)

There are two essential lessons here: First, make sure to obtain the customer's consent before asking a third party, such as Facebook or Google, to release social networking or email data. Second, make sure that existing data is properly preserved. Cleaning up a social networking account could clean out a lawyer's bank account.

A. Louis Dorny is a member of the commercial litigation group and senior counsel at the Los Angeles office of Gordon & Rees.

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