Court Quashes Subpoena Seeking Information from Social Networking Sites Related to Fee Request
Muniz v. United Parcel Service, Inc., 2011 WL 311374 (N.D. Cal. Jan. 28, 2011). In this gender discrimination litigation, the plaintiff moved to quash the defendants’ subpoena seeking additional documentation related to the plaintiff’s previous motion for attorneys’ fees. Among the documentation sought by the defendants were postings by the attorney on listservs and social media networks (including LinkedIn and Facebook). To demonstrate the relevancy of the demand, the defendants submitted postings from the attorney’s Facebook page and listservs. Denying the defendants’ request, the court found the subpoena was not appropriately geared toward revealing information relevant to the fee dispute and ordered the postings submitted by the defendants to be removed from the record.
Although this particular opinion does not address direct ediscovery issues, it does present a growing challenge faced by lawyers and corporations alike – the increasing impact of social media in the courtroom. Social networking sites continue to grow in popularity and use for both personal and business reasons, which is clearly demonstrated by the fact that Americans spend 22.7 percent of their time using these sites (in addition to blogs) as of June 2010, which represents a 43 percent increase from June 2009.
Muniz raises a novel issue posed by social networking sites, wherein opposing counsel seeks justification for fees sought by referencing the attorney’s thoughts, opinions and statements made on various social media outlets. Although the court denied the request in this case, courts in various jurisdictions are increasing being pulled into the virtual world as the content on these sites become integral to disputes. In the civil context, the primary driving issue has been the distinction between private versus public content. For example, in Romano v. Steelcase, the New York State Supreme Court granted the defendant’s request to access the plaintiff’s current and historical Facebook and MySpace pages after finding the content contained within the public portions of those sites to be relevant. A popular quote from that case carries an advisory tone for those hoping to rely on privacy settings within the social networking sphere: “privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”
Likewise, in Equal Employment Opportunity Commission v. Simply Storage Management, LLC, the Southern District of Indiana granted the production request that sought profiles (including postings, pictures, blogs, messages, personal information, list of friends or causes) from Facebook and the MySpace accounts. The court denied the party’s privacy claim, finding “Facebook is not used as a means by which account holders carry on monologues with themselves.” The court also determined that content on these sites will not be shielded from discovery simply because it is listed as private.
Although the body of case law in this area is sparse, the fact remains that social networking sites are indeed discoverable. Corporations and practitioners should undertake efforts to manage social media effectively, and determine how this new found evidence gold mine impacts discovery strategies, including the preservation, collection and production stages of the e-discovery process. Proactive measures, including education and consulting with an expert service provider, will go a long way to ensuring you are ready to address this challenging issue when it inevitable arises.
 The Neilson Company, “What Americans Do Online: Social Media and Games Dominate Activity”, available at http://blog.nielsen.com/nielsenwire/online_mobile/what-americans-do-online-social-media-and-games-dominate-activity/. Last accessed March 18, 2011.