3:30-4:15 p.m.
I. Introduction
As
the use of cell phones has continued to grow, the records maintained by cell
phone companies has become increasingly valuable to litigators. From a personal
injury standpoint, cell phone records can be used as evidence of (comparative)
negligence. From a fraud standpoint, cell phone records can be used as
impeachment evidence and to help insurers win the battle of credibility at
trial.
However,
in order to properly use this information, a litigator must first have a basic
understanding of how cell phones operate within the various cell networks, how
to obtain these cell phone records and how to use them at trial.
II. How Cell Phones Operate
When
a cell phone is powered on, it will periodically communicate with the cell
phone provider’s (i.e.: Verizon, Sprint, ATT, etc.) network (“cell
network”) – regardless of whether it is in use. In re Application of U.S.
for an Order for Prospective Cell Site Location Info. on a Certain Cellular
Tel., 460 F. Supp. 448, 450 (S.D.N.Y 2006). When the phone communicates with
the cell network, it sends a unique identification number to the network which
registers the phone’s presence and location on the network (“cell phone
signal”). Id. This cell phone signal is received by all antenna towers
(“cell towers”) within the cell network that are in the phone’s range. Id. Although,
the cell phone signal is received by all cell towers within range, the network
assigns the phone to the cell tower providing the sweetest signal at that
moment. Id. When a cell phone is assigned to a cell tower, it is said to
have pinged that tower.
Similarly,
when the phone is used to make/receive a call the phone is assigned to the cell
tower providing the sweetest signal. Id. However, if the phone is
moving, the cell tower producing the sweetest signal may change. Id. In
that case, the phone and phone call are re-assigned to the new cell tower that
is producing the sweetest signal. Id. The re-assignment of phone and
call from one cell tower to another overlapping cell tower is called a
“hand-off” and is necessary to avoid dropped calls. Nextel Comm. of the
Mid-Atl., Inc. v. Town of Brookline, Mass., 520 F. Supp. 2d 238, 242 (D.
Mass. 2007).
Cell
phone providers document which specific cell tower is pinged by each cell phone
on the cell network and save this information in the normal course and practice
of their business for billing purposes as well as for tracking call volume by
location. In re Application of U.S., 451.
III. Issues Obtaining Cell Phone Records
While
most providers will comply with a subpoena for cell phone/cell tower records,
there are a few things that a litigator should keep in mind when issuing a
subpoena to cell providers.
First,
most providers do not maintain cell records longer than one rolling calendar
year, i.e.: records from June 19, 2013 are deleted from the provider’s
records database on June 19, 2014. Therefore, it is important to issue a
subpoena for cell records as soon as possible. If possible, litigators should
encourage their client’s claim representatives to issue spoliation letters to
providers as soon as a claim is made in order to preserve these records.
Because the providers are not parties to the litigation, they do not have a
legal obligation maintain these records; however, it has been our experience
that most providers will comply with a spoliation letter.
Second,
while most providers do have registered agents to accept service of subpoenas,
most providers waive formal service of a subpoena and accept subpoenas via
facsimile. This is especially important to remember when coming up against the
one rolling calendar year deadline.
Third,
while some providers save the tower information used to transmit text messages,
others simply save the incoming/outgoing phone numbers involved in the text
message. Further, it is universal that providers do not save actual text
messages for any longer than seven days and these are generally reserved for
law enforcement.
IV. Admissibility and Authentication at Trial
Cell
phone records typically face two objections: relevance and hearsay. These
objections are surmountable. Relevant evidence is defined as “evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” See Federal Rule of Evidence 401. Further, pursuant to
Federal Rule of Evidence 403, relevant evidence may only be excluded if its
probative value is substantially outweighed by “unfair prejudice, confusion of
the issues, or misleading the jury, or considerations of undue delay, waste of
time or needless presentation of cumulative evidence.” Therefore, it is a Rule
of inclusion as opposed to exclusion.
The
relevance of cell phone records will differ from trial to trial as demonstrated
more fully below, in Section V. However, if a litigator were attempting to use
cell phone records in a personal injury trial he would likely argue that the
cell records are relevant to that litigation because they show that the
plaintiff was talking on her cell phone at the time of the accident which
distracted her, and consequently some degree of comparative fault may be
attributable to her.
Conversely,
if a litigator were attempting to use cell phone records in a fraud trial, she
could argue that the phone records are relevant because the records show that
the cell towers pinged are in a different part of town than where the accident
occurred; therefore, an alleged guest passenger could not have been at the
scene of the MVA.
Hearsay
is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted. However, as seasoned litigators are well aware, there are
several exceptions to the Hearsay Rule.
The
exception applicable to cell phone records is Tennessee Rule of Evidence 803(6)
and Federal Rule of Evidence 803(6), which is commonly referred to as the
Business Records Exception. It states, in pertinent part, that any records a
business keeps in the regular course of its business are not subject to the
Hearsay Rule so long as they are authenticated by the custodian of records or a
certification that complies with Tennessee Rules of Evidence 902(11) and
Federal Rules of Evidence 902(11), 902(12) or a similar statute. Because cell
phone providers keep the records litigators seek for billing purposes as well
as for tracking call volume by location, cell phone records routinely meet the
criteria listed in the Business Records Exception to Hearsay.
V. Uses of Cell Phone Records at Trial
A. Use of Cell Phone Records in a Personal Injury Trial
As
noted above, cell phone records are becoming increasingly popular litigation
tools in the arena of personal injury/negligence based trials. One possible use
of cell phone records in this arena is to prove a plaintiff ’s comparative
negligence. This was an issue in a recent trial in New York, Miller ex rel.
Miller v. Lewis, 963 N.Y.S. 2d 837 (Sup. Ct. 2013). In Miller, the
plaintiff, a pedestrian, was struck by a truck and sued both the driver and his
employer. Id., 838.
The
defendants argued that the plaintiff was on her cell phone at the time of the
accident, causing her be inattentive and/or fail to observe traffic conditions,
which raised issues of comparative negligence. Id., 839. In order to
establish that the plaintiff was on her cell phone, defendants cross-referenced
the plaintiff ’s cell phone records against an eye-witness’ cell phone records
and the 911 records pertaining to this accident. Id., 837.
The
plaintiff ’s cell phone records showed that she received a call at 11:01:01 AM
and that this call lasted until 11:06:33 AM. Id. The eye-witness was the
first person to call 911 and her cell phone records, while not as detailed as
the plaintiff ’s, showed that she called 911 at 11:07 AM. Id. The 911
records, which were also not as detailed as the plaintiff ’s cell phone
records, showed that the eye-witness’ 911 call was received at 11:08 AM. Id.
Therefore,
the defendants were able to argue that the plaintiff ’s phone call ended not because
she hung up her cell phone, but rather because she was involved in the
accident. Id., 839. Despite the plaintiff’s various objections, the
defendants were permitted “to present evidence of the plaintiff ’s cell phone
records and then to further argue that such cell phone use might have led to
inattentive or distracted behavior to the extent [comparative] negligence was
possible.” Id., 842.
While
the defendants were prohibited from asking witnesses about cell phone use
causing inattentiveness while walking the streets, they were permitted to
present general evidence that inattentiveness in any manner, including cell
phone use, can constitute negligence. Id., 842-843.
Further, during voire dire, the
defendants were allowed to inform the prospective jurors that the defendants
would present circumstantial evidence of the plaintiff ’s cell phone use at the
time of the accident and then question the prospective jurors as to whether
they could conclude that the plaintiff was negligent based upon that
circumstantial evidence.
Special Concerns with Cell Phone Records
When
using cell phone records, it is especially important to form an action plan
that
incorporates
the use of cell phone records. This makes the deposition of all parties and
witnesses even more important than usual if a litigator is planning on using a
deponent’s cell phone records against that deponent at trial.
First,
the litigator must be sure to have the deponent commit to all of the details of
his version of events under oath, especially as it pertains to a timeline. This
is important because with that deponent’s cell phone records the litigator will
be able to track the deponent’s movements on the date of loss by time and cell
tower location.
Second,
the litigator must have the deponent commit to having his cell phone on his
person or in the near vicinity at the time of the alleged incident. If the
deponent attempts to qualify his answer by testifying that he generally keeps
his phone on his person or in the near vicinity but not always, it is extremely
important for the litigator to follow up by asking whether the deponent had his
cell phone on him on the date of loss, at the time of the alleged incident. If
the litigator does not lock the deponent into this testimony, the deponent may
attempt to testify that his phone was not on his person at the time of the
alleged incident when questioned at trial which will substantially diminish the
usefulness of cell phone records at trial.
Finally,
it is important to remember that the main purpose in obtaining cell phone
records in a fraud case is to impeachment a party/witness; therefore, it is
important to withhold cell phone records as impeachment information until after
that party/witness has given his deposition.
VI. Conclusion
With
the popularity of cell phones continuing to grow, the records documenting their
use continue to become a valuable tool in the seasoned litigator’s
toolbox. Whether a litigator is using
cell phone records to argue that a plaintiff was distracted by her cell phone
call to support an affirmative defense of comparative fault, or to argue that a
guest passenger was not actually in a claimant vehicle at the time of an
accident, cell phone records will undoubtedly be one of the litigator’s most
compelling pieces of evidence.
Appendix 1
It
should be noted that cell phone providers will not always accept
authorizations, and will not issue records without a subpoena. Also, the
providers vary in their retention periods – with some providers retaining
records for only 90 days, 6 months or up to 1 year. Thus, it is best to issue a
spoliation letter and/or subpoena as soon as you know the provider information.
CELL
PROVIDER CONTACT INFORMATION
AT&T Custodian of Records
Custodian of Records
P.O. Box 24679
West Palm Beach, FL 33416
Facsimile: (888) 938-4715
Sprint Corporate Security
Custodian of Records
6480 Sprint Parkway
Overland Park, KS 66251
Telephone: (800) 877-7330
Facsmile: (816) 600-3111
T-Mobile Subpoena Compliance
Custodian of Records
4 Sylvan Way
Parsippany, NJ 07054
Telephone: (937) 292-8911
Facsimile: (973) 292-8697
Verizon Legal Compliance
Custodian of Record
TXD01613
P.O. Box 1001
San Angelo, TX 76902
Telephone: (888) 483-2600
Facsimile: (888) 667-0028
Cellular South/C-Spire Wireless
Custodian of Records
1018 Highland Colony Parkway
Suite 700
Ridgeland, MS 39157
Telephone: (601) 355-1522
Facsimile:
(601) 487-7517
Subpoenas
for T-Mobile records (including what used to be Aerial and Voicestream) go to:
Subpoena Compliance
4 Sylvan Way
Parsippany N J 07054
(f) 973.292.8697
973.292.8911
Subpoenas
for Verizon records go to:
Custodian of Records
Verizon Cellco Partnership,
d/b/a Verizon Wireless
Subpoena Compliance
180 Washington Valley Road
Bedminster, N J 0792 1
Fax (888) 667-0028
Voice (800) 451-5242
Subpoenas
for AT&T records (including what used to be Cingular) go to:
Custodian of Records AT&T
Subpoena Compliance
P.O. Box 24679
West Palm Beach, FL 33416
Fax (888) 938-4715
Voice (800) 451-5242
Subpoenas
for Sprint records (including what used to be Nextel) go to:
Custodian of Records
Sprint Corporate Security
6480 Sprint Parkway
Overland Park, KS 66251
Fax (913) 315-0736 or (913) 315-0735
Voice (800) 877-7330
Subpoenas
for Cricket records go to:
Custodian of Records
Attention: Subpoena Compliance
Cricket Communications/Leap Wireless
10307 Pacific Center Court
San Diego, California 92 12 1
Fax: (858) 882-923 7
Voice (858) 882-6084
Subpoenas
for Metro PCS go to:
Legal Department or Subpoena Compliance Department
Metro PCS
Custodian of Records
2250 Lakeside Blvd
Richardson, TX 75082
Voice: 800-571-1265
Fax: 972-860-2635
Appendix 2
It
should be noted that cell phone providers will not accept authorizations, and
will not issue records without a subpoena. Also, the providers vary in their
retention periods – with some providers retaining records for only 90 days, 6
months or up to 1 year. Thus, it is best to issue a spoliation letter and/or
subpoena as soon as you know the provider information.
SAMPLE SPOILATION LETTER
Via Facsimile (888) 938-4715
AT&T Custodian of Records
P.O. Box 24679
West Palm Beach, FL 33416
RE:
To Whom it May Concern:
I write to you on behalf of
XXXXXXXX in my capacity as their attorney regarding the claim number
referenced above.
Please be advised that via this
correspondence, AT&T is placed on FORMAL NOTICE that any and all
information in AT&T’S possession, however stored and in whatever form,
regarding the account activity and cellular phone tower “ping” information (hereinafter,
“Information”, which term is more fully defined below), regarding the AT&T
cellular numbers listed below, between date and date, may be
and/or is evidence material to the referenced claim and litigation regarding
the same.
Pursuant to applicable state and
federal law, AT&T has or may have a CIVIL DUTY, to preserve all applicable
Information in its possession and/or control, and _____________________requests
that AT&T take all necessary action to ensure it preserves all applicable
Information in its possession and/or control.
”Information” as the term is
used in this letter, shall refer to the following:
All records and data, in
whatever form, related to the cellular/wireless phone numbers:
1. (XXX) XXX-XXXX
2. (XXX) XXX-XXXX
for the time period date through
date, including but not limited to the following:
1) Cell sites(s) activations(s)
regarding each call to and from the Phone;
2) Each Number(s) dialed from
the Phone;
3) Each Incoming number(s) from
call to the Phone;
4) Duration of each call to and
from the Phone;
5) All alpha-numeric message(s)
and text messages send to and from the Phone;
6) Subscriber(s) Electronic
Serial Number (E.S.N.), and billing information for the Phone, or, telephone
number(s) revealed from these record(s);
7) The identity and location
(including street address and longitudinal and latitudinal coordinates) of
first and last cellular tower handling each call to and from the Phone.
8)
Subscriber(s) E.S.N., and billing information for any other cellular/wireless telephone(s)
also on the Phone’s account, or, that may be identified from these record(s);
9) All evidence which shows the
location of the phones associated with these numbers, when each was used to
make or receive calls on date and date. This request includes,
but is not limited to all records which show which cell phone towers were
accessed or “pinged” for each such call;
10) An engineering map; showing
all cell-site tower location(s), sectors, and orientation(s). And,
a list of any and all applicable
cellular site(s)’ number(s), location(s), address(es), latitude and
longitude of any said site(s).
Also, that cellular site(s)’ list(s) latitude(s) and longitude(s), be provided
in electronic format;
11) Should this
cellular/wireless, Mobile Identification Number (M.I.N.)/E.S.N., or
combination, be changed by the subscriber(s) during the course of this order,
this request will apply to any new
M.I.N./E.S.N.;
12) That, with applicable
format(s), that the provider(s) supply upon specific request(s) International
Mobile Subscriber Identity (I.M.S.I.) and, International Mobile Equipment
Identity number (I.M.E.I.), when applicable, and also will provide Temporary
Mobile Subscriber Identity
number (T.M.S.I.) information as
often and/or frequent as it should change, if applicable and
upon specific request(s);
13) That all call detail,
subscriber, numeric message(s), alpha-numeric message(s), and any related
record(s) and/or access be provided, upon specific request of specific data
from specific time period(s) with the confines of this request, in an
electronic format specified. Also, that the
record(s)/date be forwarded;
14) This request will apply to
the actual physical analysis by agent(s)/officer(s)/designee(s), as necessary
for the collection of said data, and/or information, of the actual
telecommunications device (cellular phone, pager, etc.), itself, associated
with the number(s), account(s), etc. which is the target of this request;
15) This request will apply to
any and all company(ies) which may provide and/or carry
wireless/telecommunication service(s) for the target mobile number(s). This may
be required because of number portability and/or if the original carrier is
modified due to roaming and/or other consideration(s)/reason(s);
16) You are requested to produce
a map showing “call processing handovers” for the day, time and phone at issue.
This request to preserve
Information applies to any and all company(ies) which may provide and/or carry
wireless/telecommunication service(s) for the target mobile number(s). this may
be required because of number portability and/or if the original carrier is
modified due to roaming and/or other consideration(s)/ reason(s).
Please be advised that AT&T
may incur civil liability under state and federal law should it fail to
preserve the Information specified in this NOTICE.
Social Media Evidence
1. The Importance and Forms of Social Media
The growth of social media use has been exponential. Over 70% of
the people in the U.S. are using social media of one form or another (over 50%
on Facebook alone). There are many forms of social media. Litigation attorneys
must do their best to keep up with what the public is doing on social media in
order to know where to look for evidence. The numbers below are estimated
number of users though some or even many may not be active users. The numbers
were obtained from various websites and we cannot vouch for their accuracy.
They are provided to provide a sense of the important role of social mediarTF
today. For instance:
Personal
interaction/ friendship: Facebook (about 1 billion monthly users); Twitter (500 million);
Qzone (500 million); Google-plus (340 million); Tagged (330 million); WeChat
(300 million); Badoo (170 million); Netlog (90 million); MyLife (60 million);
Tango (mobile video chat – 80 million); Sonico (focused on Latin American
users; 55 million); Stumbleupon (30 million); Bebo (30 million); MySpace (25
million unique monthly users).
Business: LinkedIn (200
million users); Branchout (30 million).
Dating sites: match; zoosk;
meetup; eharmony; spark; datehookup; okcupid; spark;
gofishdating; mingle2; connectingsingles; howaboutwe; flirt;
howaboutwe. Some are a bit more
focused: christiandating; christianmingle; jdate (for Jewish
faith); blackplanet (for African-
Americans); ourtime (over 50 years old);
professionalsinglesover40; and for those who are not
satisfied with chasing Nigerian fortunes on the internet some
Sugar Daddy dating sites –
findrichguys.com and seekingmillionaire.com.
Photo and
video-sharing and editing: Youtube (800 milliion); Instagram (90 million/ 4 billion photos);
Dropbox (100 million); Flickr (75 million); Imgur (50 million); Pinterest (25
million; over 90% are women).
Videos/ audio: YouTube (800
million; 4 billion views per day); Soundcloud (180
million); Socialcam (50 million); Viddy (40 million).
Blogs: Sina Weibo
(Chinese; 400 million); Tumblr (over 75 million multimedia blogs
and 150 million users); personal blogs (for example, see on the
internet the story of the young
woman fired from a nonprofit for her graphic sex blog “The
Beautiful Kind” created on her own
time).
Coupons: Groupon (40
million); Living Social.
Entertainment: Shazam (share
movies, TV shows, music; 250 million users and 5 billion tags); Steam (gaming;
50 million).
Shopping
preferences: Paypal (117 million); Ebay (100 million); Pinterest (50 million
and rising rapidly; only 3 years old; 80% or more of users are
women); Foursquare (local
businesses and restaurants – 25 million).
Communications: QQ (Chinese instant
messaging; 700 million); Skype (280 million);
Ortsbo (200 million); Viber (140 million); Voxer (70 million);
Kakao Talk (70 million); Kik
Messenger (mobile instant messaging; 30 million).
News: Reddit (40 million;
37 billion).
Directions: Waze (34 million).
Travel: WAYN (20 million).
There are additional sources of valuable information such as
comments on websites’ bulletin boards, note storage (Evernote: 45 million
users).
You will have to use searches on internet search engines and
traditional discovery methods to discover such information. A review of many
reported cases indicates that the likeliest sources of relevant information are
Facebook, Twitter, and MySpace. While LinkedIn has become immensely popular, it
is work-oriented and postings are less likely to reveal the bad acts and true
character of the posters.
Facebook. Your public
postings on Facebook go to anyone in the world unless you have
placed access restrictions on your Facebook page. Note also that
Facebook updates access
controls and often defaults new features to “public view,” which
necessitates frequent checking
of preferred settings and options to maintain desired levels of
privacy.
Twitter. Twitter posts
differ from Facebook posts. Twitter users post “tweets” of up to
140 characters, can monitor, follow, and repost others’ tweets,
and can permit or forbid access to
their own tweets. Twitter is more like a private electronic
bulletin board which is only seen by
persons who sign up to be on the board. If you follow someone on
Twitter, Twitter will send
them an email notifying them that you are following them using
your Twitter account name.
Despite this difference, tweets on Twitter are usually
discoverable.
MySpace. After dominating
from about 2005 to 2008, MySpace appears to have lost the battle for No.1 to
Facebook in the personal message arena. However, it has had more success in
discovering and promoting new music artists. MySpace is in the process of
reinventing itself by focusing on interaction about entertainment, including
music, movies, celebrities, and TV.
Methods/Techniques to Obtain Social Media
Discovery
At the beginning of a case, be sure to notify the opposing party
or counsel to preserve the
party’s social media information. Also tell your own client to
preserve all social media accounts.
All parties are obligated to preserve evidence that they
reasonably should know is relevant to the
lawsuit.
Principles/Trends in cases involving Social Media evidence discovery
requests/subpoenas for social media evidence should be drawn narrowly. Tie
your discovery requests to information already in hand that shows that the request
is seeking evidence that likely exists and, therefore, not a fishing
expedition.
Courts normally hold that the posted social media information is
discoverable because any privilege or privacy protection was waived by sharing
the content. However, most courts will require some showing of relevance and
not allow discovery of all or a broad scope of material. Usually, the
discovering party must show information that at least suggests the existence of
relevant information at the social media account before the court will order
production or access to the information.
In EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind.
2010), the court allowed broad discovery of plaintiffs’ Facebook and MySpace
accounts through Rule 34 document requests directed at the two claimants though
the court had concerns that the requests may be seeking too much.
In Reid v. Ingerman Smith LLP, 2012 WL 6720752 (E.D. N.Y. Dec. 27,
2012) a legal secretary sued her former law firm employer for same-sex
harassment and sought damages for emotional distress. The law firm obtained her
private Facebook postings by showing the court that her public postings
contradicted her claims of mental anguish.
In Howell v. The Buckeye Ranch, Inc., 2013 WL 1282518 (S.D. Ohio
Oct.1, 2012), the court denied a motion to compel production of plaintiff’s
user names and password for each social media site she used. The request was
deemed overbroad because it was not limited to seeking only social media
information relevant to the limited purposes identified by the defendants –
plaintiff’s emotional state and whether the alleged sexual harassment had
occurred.
In Thompson v. Autoliv ASP, Inc., 2012 WL 234928, at *1 (D. Nev.
June 20, 2012), the plaintiff sought damages from a massive stroke, including
for physical injury, hedonic damages, and damages for emotional distress and
depression. The defendant found wall posts and photos on plaintiff’s Facebook
page undermining her claims. The defendant belatedly changed the
privacy settings and then produced only redacted material that
supported her injury claims while opposing defendant’s document requests for
complete, unredacted copies of plaintiff’s Facebook and other social networking
sites accounts. The court ordered all Facebook and MySpace information for more
than a 5-year period produced without requiring an in camera review
relying heavily on the relevant information defendant had already found online.
Likewise, in Zimmerman v. Weis Markets, Inc., 2011 WL 2065410 (Pa.
Ct. of Common
Pleas May 19, 2011), the court ordered production of all
passwords, user names, and log-in names for all of his MySpace and Facebook
accounts. Plaintiff claimed that injuries to his leg in a forklift accident
caused serious, permanent health impairment and that scarring caused
embarrassment so that he never wore shorts. The plaintiff undermined his claims
with photos of his injuries from motorcycle accidents before and after the
forklift accident, photos showing him wearing shorts, and claims that he
enjoyed “bike stunts.” Reminds one of the joke with the punchline “who you
going to believe, me or your lying eyes.”
In contrast, the court in Mailhoit v. Home Depot U.S.A., Inc.,
2012 WL 3939063 (C.D.
Cal. Sept.7, 2012), rejected the approach in Simply Storage and
held that the discovery requests
17 were much too broad in light of the defendant’s failure to
satisfy Rule 34(b)(1)(A)’s requirement for “reasonable particularity” and Rule
26(b)(1)’s requirement that the information be relevant or would lead to
admissible evidence. The court rejected requests for “any profiles, postings or
messages” from any social media site for a 7-year period that could reveal the
plaintiff’s emotions, feelings, or mental state and for “any pictures of
Plaintiff” during that same time period and posted on her profile or tagged to
her profile.
Similarly, in Tompkins v. Detroit Metropolitan Airport, 278 F.R.D.
387 (E.D. Mich.
2012), the court held that a “request for the entire Facebook
account, which may well contain voluminous personal materials having nothing to
do with this case, is overly broad.” The court did not find that plaintiff’s
public postings opened the door to more expansive discovery as was the case in
Thompson because the public information was consistent with the plaintiff’s
claims.
In Mackleprang v. Fidelity Nat. Title Agency of Nevada, Inc., 2007
WL 119149 (D. Nev.
Jan. 9, 2007), the defendants obtained public information from
MySpace for two accounts held
by plaintiff. The defendants sought an order requiring defendant
to provide her private messages in those accounts in search for sexually
oriented messages that might disprove her claim of emotional harm from sexual
harassment. The court denied the motion to compel because (1) the plaintiff
opened the MySpace accounts after she left defendant’s employment so not
relevant to show she welcomed defendant’s sexual advances and (2) the probative
value did not outweigh the unfair prejudice with regard to her emotional
distress claim as it would not provide evidence that plaintiff welcomed
defendants’ alleged sexual conduct.
Compulsion efforts are better targeted at the users of the social
media, not at the social media providers.
ISPs are not responsible for defamatory or derogatory postings
under the
Communications Decency Act. 47 U.S.C. § 230(c)(1) (2008). You have
to go after the poster of the comments.
In Barnes v. CUS
Nashville, LLC, 2010 WL 2196591 (M.D. Tenn. May 27, 2010), the court relied on
the SCA and Flagg to set aside the magistrate judge’s show cause order directed
at Facebook to turn over postings by a nonparty witness.
In Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (2010), material on
plaintiff’s public
Facebook and MySpace pages showed her living an active lifestyle
and traveling though she claimed her injuries prevented such activity. The
court held that the private pages had information relevant and material to the
claims and defenses and ordered plaintiff to provide an authorization to
defendant to access plaintiff’s private pages. See also McMillen v.
Hummingbird Speedway, Inc., 2010 WL 4403285 (Pa. Ct. of Common
Pleas Sept. 9, 2010)
(ordered plaintiff to produce Facebook and MySpace user names and
passwords because public parts showed plaintiff enjoying fishing and the
Daytona 500 in contradiction to claimed injuries); Ledbetter v. Wal-Mart
Stores, Inc., 2009 WL 1067018, at *2 (D. Colo. Apr. 21, 2009) (court noted that
SCA barred social media sites from producing information but rejected
plaintiff’s privacy arguments and ordered plaintiff to produce contents of
Facebook, MySpace, and Meetup.com accounts because public information on those
accounts contradicted claims of physical and psychological injuries).
Use of Social Media Evidence in Lawsuits
1.
Evidentiary uses and issues.
Authentication. TRE 901 and FRE 901 establishes
the requirements for authentication
or identification as a condition precedent to the admissibility of
non-testimonial evidence. Both give
examples of how authentication can be accomplished. Generally, the proponent of the internet
printout must provide testimony by live witness or affidavit that the printout
is what
it purports to be.
Identification. Photos from social media sites have been used to help identify and
incriminate criminal defendants. In Bradley v. Texas, No. 14-10-01167-CR (Tex.
Ct. App. 2012), a robbery victim found photos of the two robbers on Facebook.
Bradley was one of them and he was holding two guns in one photo, including a
gun that looked like the one used in the robbery. The victim emailed the photos
to the investigating detective and they were used in photo arrays through which
the victim identified the robbers. The court held that even if the array was
suggestive, there was ample other evidence of identification that occurred
prior to the use of the array. See also Rene v. State, 376 S.W.3d 302
(Tex. Ct. App. 2012) (prosecution used
MySpace photos of defendant showing him with gang signs, tattoos,
a pistol, and a large amount of cash).
Relevance. Obviously, the social media evidence has to be relevant to issues
in the case. See TRE and FRE
401.
Hearsay. Of course, hearsay
objections may arise when using electronic evidence. See Miles v. Raycom
Media, Inc., 2010 WL 4791764 *3 n.1 (S.D.Miss. Nov. 18, 2010) (unsworn
statements made on Facebook page by nonparties were inadmissible under FRE
801). You may have multiple layers of hearsay involved and have to rely upon
several hearsay exceptions.
Discovery to Opposing Parties Re: Social Media
Case law makes clear that social media discovery directed to a
party must be narrowly
tailored to the issues relevant in the case. Below are some sample
interrogatories and requests
for production that may be useful in your case.
SAMPLE INTERROGATORIES TO PARTY
1. Please identify any home or other e-mail accounts (including
those associated with social media sited, eg., jane.doe@facebook.com) that you
maintained or used during the entire time that you claim is relevant to this
case, including a listing of the specific e-mail addresses for all such
accounts, when they were first established, and if they have been terminated,
the date of termination.
2. Please identify any home or other Instant Messaging (“IM”)
applications or services (e.g., AOL Instant Messenger, Yahoo Messenger,
MSN Messenger, Google Chat, Facebook
Messenger, etc.) that you maintained or used during the
entire time that you claim is relevant to this case, including a listing of the
specific IM addresses or screen names for all such accounts, when they were
first established, and if they have been terminated, the date of termination.
3. Please identify any chat rooms or social networking web-sites
that you maintained an account with or used during the entire time that you
claim is relevant to this case, including a listing of each such account, when
they were first established, and if they have been terminated, the date of
termination;
4. Please identify any Google+, MySpace, Facebook, Twitter,
Meetup.com, Orkut, Flickr,
Gather.com, Tumblr, Windows Live Spaces, MSN Spaces or similar
social networking accounts that you maintained or used during the entire time
that you claim is relevant to this case, including a listing of the specific
screen names for all such accounts, when they were first established, and if
they have been terminated, the date of termination.
5. Please identify any LinkedIn, Monster.com, CareerBuilder.com or
similar job listing or professional networking accounts you maintained or used
during the entire time that you claim is relevant to this case, including a
listing of when they were first established, and if the account has been
terminated, the date of termination;
6. Please identify any blogging or wiki provider or similar
accounts that you maintained or used during the entire time that you claim is
relevant to this case, including a listing of
the specific screen names for all such accounts, when they were
first established, and if
the account has been terminated, the date of termination;
7. Please identify all personal ads you have placed on-line or in
print, including a listing of where the ads where placed and when;
8. Please identify all online and internet personas or identities
that you have assumed,
including a listing of all such identities or personas and the
date such identities and
26 personas were used, for what purpose and the names of the
websites that such identities
and personas were used.
9. For each of the websites and or services listed below, identify
your usernames(s), the
email address(es) associated with your account, and the
approximate date you joined the
website or service. If you have not joined a listed website or
service, expressly state that
you have never joined that particular website or service:
SAMPLE DOCUMENT REQUEST TO PARTY
1. Please provide copies of all instant messaging logs or
transcripts associated with any
accounts identified in response to Interrogatory No. __.
2. Please provide copies of any contributions you have made to any
online forum or
Website or online service associated with any accounts identified
in response to
Interrogatory No. __.
3. Please provide copies of any Documents or electronically stored
information you have
created and/or stored using any third party online service
provider, including, but not
limited to, Google+, MySpace, Facebook, Twitter, Meetup.com,
Orkut, Flickr,
Gather.com, Tumblr, Windows Live Spaces, MSN Spaces, LinkedIn,
Monster.com,
CareerBuilder.com, blogs, or wikis, associated with any accounts
identified in response
to Interrogatory No. __.
4. Please provide an electronic copy of your complete Facebook
history, including any and all profile information, postings, pictures, and
data available pursuant to Facebook's
"Download Your Own Information" feature.
5. For each Facebook account maintained by you, please produce
your account data for the period of ______ through present. You may download
and print your Facebook data by
logging onto your Facebook account, selecting “Account Settings”
under the “Account”
tab on your homepage, clicking on the “learn more” link beside the
“Download Your
Information” tab, and following the directions on the “Download
Your Information”
page.
Use
of Subpoenas to Produce Documents
TENNESSEE RULES OF CIVIL
PROCEDURE
Rule 45.02: For Production
of Documents and Things or Inspection of Premises.
A subpoena may command a person to produce and
permit inspection, copying, testing, or sampling of designated books, papers,
documents, electronically stored information, or tangible things, or inspection
of premises with or without commanding the person to appear in person at the
place of production or inspection. When appearance is not required, such a
subpoena shall also require the person to whom it is directed to swear or
affirm that the books, papers, documents, electronically stored information, or
tangible things are authentic to the best of that person’s knowledge,
information, and belief and to state whether or not all books, papers,
documents, electronically stored information, or tangible things responsive to
the subpoena have been produced for copying, inspection, testing, or sampling.
Copies of the subpoena must be served pursuant to Rule 5 on all parties, and
all material produced must be made available for inspection, copying, testing,
or sampling by all parties. [As amended by order entered December 14, 2009,
effective July 1, 2010.]
A party serving a subpoena requiring production of
electronically stored information shall take reasonable steps to avoid imposing
undue burden or expense on a person subject to the subpoena.
An order of the court requiring compliance with a
subpoena issued under this rule must provide protection to a person that is
neither a party nor a party's officer from undue burden or expense resulting
from compliance.
A command to permit inspection, copying, testing,
or sampling may be joined with a command to appear at trial or hearing, or at a
deposition, or may be issued separately. A subpoena may specify the form or
forms in which electronically stored information is to be produced.
Rule 45.03: Service.
A subpoena may be served by any person authorized
to serve process, or the witness may acknowledge service in writing on the
subpoena. Service of the subpoena shall be made by delivering or offering to
deliver a copy thereof to the person to whom it is directed.
Rule 45.07: Protection of Persons Subject to Subpoena.
(1) A party or attorney responsible for issuing
and serving a subpoena must take reasonable steps to avoid imposing undue
burden or expense on a non-party witness subject to the subpoena and shall
provide the non-party witness at least twenty-one (21) days after service of
the subpoena to respond, absent agreement of the non-party witness or a court
order.
(2) A non-party witness commanded to give
deposition testimony or to produce documents or tangible things or to permit
inspection shall serve on the party or attorney designated in the subpoena a
written objection, if any, to having to give testimony or to inspecting,
copying, testing or sampling any or all of the materials or to inspecting the
premises, or to producing electronically stored information in the form or
forms requested. Such objection must be served on the party or attorney
designated in the subpoena within twenty-one days after the subpoena is served.
(3) At any time, on notice to the commanded person,
the serving party may move the issuing court for an order compelling testimony,
production or inspection.
(4) The Court may: (1) grant the motion to compel
testimony or production or inspection, or modify the subpoena if it is
unreasonable and oppressive; or (2) condition the grant of the motion upon the
advancement by the person in whose behalf the subpoena is issued of the
reasonable costs of producing the books, papers, documents, electronically
stored information, or tangible things. The timely service of an
objection obviates the need for compliance with the deposition subpoena pending
further order of the court. The failure to serve an objection within the
time period specified herein waives all objections to the subpoena except the
right to seek the reasonable costs for producing books, papers, documents,
electronically stored information, or tangible things.
[As enacted by order entered January 29, 1987, effective August 1, 1987;
and by order entered January 6, 2005, effective July 1, 2005; and amended by
order entered January 8, 2009, effective July 1, 2009; by order filed December
21, 2010, effective July 1, 2011; and by order filed December 18, 2012,
effective July 1, 2013.]
Advisory Commission Comments [2011].
Rule 45.07 was amended to clarify the obligations
of one who chooses to object to a subpoena issued under this rule. If a person
served with a subpoena wishes to challenge it for any reason, a motion to quash
or modify must be filed within fourteen days of service, unless the time for
compliance is less than fourteen days from the date of service, in which event
the motion to quash or modify must be filed before the date and time specified
for compliance. The failure to timely file a motion to quash or modify waives
all objections to the subpoena except the right to seek reasonable costs for
producing books, papers, documents, electronically stored information, or
tangible things.
Advisory Commission Comments [20131].
Amended Rule 45.07 states the duty of an issuing
party or attorney to avoid undue burden on the non-party witness receiving the
subpoena. It also eliminates the necessity for a non-party to file a
motion to quash or modify a deposition subpoena for testimony or subpoena for
production of documentary evidence. The rule adopts the procedure under
Fed. R. Civ. P. 45(c)(2)(B), permitting the subpoenaed non-party to serve a
written objection on the party or attorney designated in the deposition
subpoena. This objection must be served within twenty-one days of service
of the subpoena on the non-party. The burden is shifted to the party
issuing the subpoena to file a motion to compel. The rule otherwise
retains the method of enforcing a subpoena set out in former Tenn. R. Civ. P.
45.07.
FEDERAL RULES OF CIVIL PROCEDURE
Rule
45— Subpoena
(a) Form; Issuance.
(1) Every subpoena shall
(A) state the name of the court from which it
is issued; and
(B) state the title of the action, the name of
the court in which it is pending, and its civil action number; and
(C) command each person to whom it is directed
to attend and give testimony or to produce and permit inspection and copying of
designated books, documents or tangible things in the possession, custody or
control of that person, or to permit inspection of premises, at a time and
place therein specified; and
(D) set forth the text of subdivisions (c) and
(d) of this rule.
A
command to produce evidence or to permit inspection may be joined with a
command to appear at trial or hearing or at deposition, or may be issued
separately.
(2) A subpoena commanding attendance at a
trial or hearing shall issue from the court for the district in which the
hearing or trial is to be held. A subpoena for attendance at a deposition shall
issue from the court for the district designated by the notice of deposition as
the district in which the deposition is to be taken. If separate from a
subpoena commanding the attendance of a person, a subpoena for production or
inspection shall issue from the court for the district in which the production
or inspection is to be made.
(3) The clerk shall issue a subpoena, signed
but otherwise in blank, to a party requesting it, who shall complete it before
service. An attorney as officer of the court may also issue and sign a subpoena
on behalf of
(A) a court in which the attorney is authorized
to practice; or
(B) a court for a district in which a
deposition or production is compelled by the subpoena, if the deposition or
production pertains to an action pending in a court in which the attorney is
authorized to practice.
(b) Service.
(1) A subpoena may be served by any person who
is not a party and is not less than 18 years of age. Service of a subpoena upon
a person named therein shall be made by delivering a copy thereof to such
person and, if the person's attendance is commanded, by tendering to that
person the fees for one day's attendance and the mileage allowed by law. When
the subpoena is served on behalf of the United States or an officer or agency
thereof, fees and mileage need not be tendered. Prior notice of any commanded
production of documents and things or inspection of premises before trial shall
be served on each party in the manner prescribed by Rule
5(b)
(2) Subject to the provisions of clause (ii) of
subparagraph (c)(3)(A) of this rule, a subpoena may be served at any place
within the district of the court by which it is issued, or at any place without
the district that is within 100 miles of the place of the deposition, hearing,
trial, production, or inspection specified in the subpoena or at any place
within the state where a state statute or rule of court permits service of a
subpoena issued by a state court of general jurisdiction sitting in the place
of the deposition, hearing, trial, production, or inspection specified in the
subpoena. When a statute of the United States provides therefor, the court upon
proper application and cause shown may authorize the service of a subpoena at
any other place. A subpoena directed to a witness in a foreign country who is a
national or resident of the United States shall issue under the circumstances
and in the manner and be served as provided in Title 28, U.S.C. § 1783.
(3) Proof of service when necessary shall be
made by filing with the clerk of the court by which the subpoena is issued a
statement of the date and manner of service and of the names of the persons
served, certified by the person who made the service.
(c) Protection of Persons Subject to Subpoenas.
(1) A party or an attorney responsible for the
issuance and service of a subpoena shall take reasonable steps to avoid
imposing undue burden or expense on a person subject to that subpoena. The
court on behalf of which the subpoena was issued shall enforce this duty and
impose upon the party or attorney in breach of this duty an appropriate
sanction, which may include, but is not limited to, lost earnings and a
reasonable attorney's fee.
(2) (A) A person commanded to produce
and permit inspection and copying of designated books, papers, documents or tangible
things, or inspection of premises need not appear in person at the place of
production or inspection unless commanded to appear for deposition, hearing or
trial.
(B) Subject to paragraph (d)(2) of this rule,
a person commanded to produce and permit inspection and copying may, within 14
days after service of the subpoena or before the time specified for compliance
if such time is less than 14 days after service, serve upon the party or
attorney designated in the subpoena written objection to inspection or copying
of any or all of the designated materials or of the premises. If objection is
made, the party serving the subpoena shall not be entitled to inspect and copy
the materials or inspect the premises except pursuant to an order of the court
by which the subpoena was issued. If objection has been made, the party serving
the subpoena may, upon notice to the person commanded to produce, move at any
time for an order to compel the production. Such an order to compel production
shall protect any person who is not a party or an officer of a party from
significant expense resulting from the inspection and copying commanded.
(3) (A) On timely motion, the court by
which a subpoena was issued shall quash or modify the subpoena if it
(i) fails to allow reasonable time for
compliance;
(ii) requires a person who is not a party or an
officer of a party to travel to a place more than 100 miles from the place
where that person resides, is employed or regularly transacts business in
person, except that, subject to the provisions of clause (c)(3)(B)(iii) of this
rule, such a person may in order to attend trial be commanded to travel from
any such place within the state in which the trial is held, or
(iii) requires disclosure of
privileged or other protected matter and no exception or waiver applies, or
(iv) subjects a person to undue burden.
(B) If a subpoena
(i) requires disclosure of a trade secret or
other confidential research, development, or commercial information, or
(ii) requires disclosure of an unretained
expert's opinion or information not describing specific events or occurrences
in dispute and resulting from the expert's study made not at the request of any
party, or
(iii) requires a person who is not a
party or an officer of a party to incur substantial expense to travel more than
100 miles to attend trial, the court may, to protect a person subject to or
affected by the subpoena, quash or modify the subpoena or, if the party in
whose behalf the subpoena is issued shows a substantial need for the testimony
or material that cannot be otherwise met without undue hardship and assures
that the person to whom the subpoena is addressed will be reasonably
compensated, the court may order appearance or production only upon specified
conditions.
(d) Duties in Responding to Subpoena.
(1) A person responding to a subpoena to
produce documents shall produce them as they are kept in the usual course of
business or shall organize and label them to correspond with the categories in
the demand.
(2) When information subject to a subpoena is
withheld on a claim that it is privileged or subject to protection as trial
preparation materials, the claim shall be made expressly and shall be supported
by a description of the nature of the documents, communications, or things not
produced that is sufficient to enable the demanding party to contest the claim.
(e) Contempt. Failure by any person without
adequate excuse to obey a subpoena served upon that person may be deemed a
contempt of the court from which the subpoena issued. An adequate cause for
failure to obey exists when a subpoena purports to require a non-party to
attend or produce at a place not within the limits provided by clause (ii) of
subparagraph (c)(3)(A).
[As
amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949;
Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 29,
1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff.
Dec. 1, 1991.]
UNIFORM INTERSTATE DEPOSITIONS AND DISCOVERY ACT
The
Tennessee legislature enacted the Uniform Interstate
Depositions and Discovery Act, Tenn. Code Ann. §§24-9-201 et. seq. The
act, which took effect July 1, 2008, provides a mechanism for the
issuance, service, enforcement and quashing of subpoenas originating
from out of state courts.
The
act applies to the situation where a litigant, in a case pending in another
state, wants to conduct discovery in Tennessee. The act requires Tennessee
court clerks to issue a subpoena, if presented with a subpoena issued
under the authority of a court of record from a state other than Tennessee.
"State" includes any territory or possession subject to the
jurisdiction of the United States. The act applies to subpoenas for testimony
or for the production of documents or things.
Service
of the subpoena and any deposition under the act must be in accordance
with the Tennessee Rules of Civil Procedure. The act also addresses
applications to enforce, quash or modify the subpoena. The full text of
the Act can be viewed by clicking here.
The
new law deletes former Tenn. Code Ann. §24-9-103
(Uniform Foreign Depositions Act) in its entirety and does away with the former
cumbersome requirement of the issuance of a mandate, writ or
commission, from the foreign court, and the filing of a petition in the
Tennessee court requesting the issuance of a subpoena of a local
witness.
Serving a Civil Subpoena
on a Social Media Site to
Obtain Content of a
User’s Profile
Facebook, in a Help page article titled “May I
obtain contents of a user’s account from Facebook using a civil subpoena?”<http://linkon.in/XWGVkB>,
cites the Stored Communications Act as the reason that “Federal law prohibits
Facebook from disclosing user content…in response to a civil subpoena,” stating
unequivocally:
“Federal law prohibits Facebook from
disclosing user content (such as messages, timeline posts, photos, etc.) in
response to a civil subpoena. Specifically, the Stored Communications Act, 18
U.S.C. § 2701 et seq., prohibits Facebook from disclosing the contents of an
account to any non-governmental entity pursuant to a subpoena or court order.”
But, is the Stored Communications Act really
that clear about exempting this information from a civil subpoena? The Stored Communications Act was enacted
before Facebook or even the World Wide Web existed. Despite that fact, the
judge in Crispin v. Audigier, 717 F.Supp.2d 965 (2010, C.D. CA) held that certain elements (e.g., private
messages) of a user’s Facebook or Myspace profile were protected from being
subpoenaed under the Stored Communications Act by analogizing them to a type of
electronic message that was mentioned in the Stored Communications Act. Thus,
the court quashed the defendant’s subpoenas to Facebook and Myspace (and one
other site) requesting private messages from the plaintiff’s account.
As to the subpoenas seeking Facebook wall
postings and MySpace comments, however, the Crispin court remanded the
matter so a fuller evidentiary record regarding plaintiff’s privacy settings
could be determined before deciding whether to quash the subpoena for those
elements. This implies that Facebook does not get to decide where the “privacy”
bar should be set in determining whether social networking postings and
comments are subject to a subpoena as Facebook’s Help pages would lead us to
believe—only the Court gets to decide that.
Facebook
The following is Facebook’s position
and instructions concerning account information that is subject to a subpoena:
Account Contents
Federal law does not allow
private parties to obtain account contents (ex: messages, Timeline posts,
photos) using subpoenas. See the Stored Communications Act, 18 U.S.C. § 2701 et
seq.
Parties to litigation may
satisfy party and non-party discovery requirements relating to their Facebook
accounts by producing and authenticating the contents of their accounts and by
using Facebook’s "Download Your Information" tool, which is accessible through the Settings drop
down menu.
If a person cannot access
their content, Facebook may, to the extent possible, attempt to restore access
to deactivated accounts to allow the person to collect and produce their
content, however Facebook cannot restore account content deleted by that
person. Facebook preserves account content only in response to a valid law
enforcement request.
Account Information
Facebook may provide basic
subscriber information (not content) where the requested information is
indispensable to the case, and not within a party’s possession upon personal
service of a valid federal, California or California domesticated subpoena and
after notice to people affected.
Parties seeking basic
subscriber information must specifically identify accounts by email address and
Facebook user ID (UID). Names, birthdays, locations, and other information are
insufficient. UIDs may be found in the uniform resource locator available in a
browser displaying the account in question. For example, in the URL
http://www.facebook.com/profile.php?id=12345678910, 12345678910 is the UID.
How can I download my information from Facebook?
To download your
information from Facebook, you'll need to log in from a computer, then follow
the steps below:
- Click
at the top right of any Facebook page and
select Settings - Click Download a copy of your
Facebook data below your General Account Settings
- Click Start My Archive
Because this download
contains your profile information, you should keep it secure and be careful
when storing, sending or uploading it to any other services.
Learn more about what info is included in your download. If you don't have a Facebook account, you can make a data access request.
The SCA (Stored Communications Act)
generally prohibits -- subject to certain exceptions -- a "person or
entity providing an electronic communication service to the public" from
"knowingly divulging to any person or entity the contents of a
communication while in electronic storage by that service." 18 U.S.C. §
2702(a)(1). It further prohibits --
again, subject to certain exceptions -- a "person or entity providing
remote computing service to the public" from "knowingly divulg[ing]
to any person or entity the contents of any communication which is carried or
maintained on that service." 18 U.S.C. § 2702(a)(2). Disclosure in violation
of the SCA can expose the record holder to civil liability. (Theofel v
Farey-Jones 359 F.3d 1066 (2004, CA9 Cal), cert den 160 L Ed 2d 17, 125 S
Ct 48 (2004) (Because corporation and attorney procured consent by exploiting
mistake of which they had constructive knowledge of subpoena's invalidity,
district court erred when it dismissed officers' claim for violation of SCA
based on such consent.))
The SCA enumerates several exceptions to the rule that
service providers may not disclose the contents of stored messages. Among the
disclosures authorized are those that are incidental to the provision of the
intended service (see 18 U.S.C. § 2702(b)(1), (4), (5)); incidental to the
protection of the rights or property of the service provider (18 U.S.C. §
2702(b)(5)); made with the consent of a party to the communication or, in some
cases, the consent of the subscriber (see 18 U.S.C. § 2702(b)(3)); related to
child abuse (18 U.S.C. § 2702(b)(6)); made to public agents or entities under
certain conditions (18 U.S.C. § 2702(b)(7), (8)); related to authorized
wiretaps (18 U.S.C §§ 2702(b)(2), 2517, 2511(2)(a)(ii)); or made in compliance
with certain criminal or administrative subpoenas issued in compliance with
federal procedures (18 U.S.C. §§ 2702(b)(2), 2703)).
The SCA does not include an exception for civil
subpoenas. Several courts have concluded that this means that EC holders may
not produce “content” records in response to a civil subpoena and cannot be
compelled by court order to do so. (see, e.g., O’Grady v. Superior Court,
139 Cal. App. 4th 1423; 44 Cal. Rptr. 3d 72 (2006); Theofel, supra; In re
Subpoena Duces Tecum to AOL, LLC, 550 F. Supp.2d 606, 609-10 (E.D. Va.
2008); Federal Trade Commission v. Netscape Communication Corp., 196
F.R.D. 559, 559, 561 (N.D. Cal. 2000); Flagg v. City of Detroit, 252
F.R.D. 256 (E.D.Mich. 2008).)
So, if your subpoena does not call for production of records
containing “content,” the SCA does not bar enforcement.
What constitutes “content” is uncertain. In response to my
pending subpoena to Facebook and LinkedIn, a paralegal from their respective
legal departments called to tell me that they would not produce content. When I
pointed out that one category sought dates and times only, she said they had
“never dealt with that issue before.” After speaking with the General Counsel,
however, that paralegal advised that it was their position that this is content.
I am waiting for the formal response.
On the other hand, after sending a form letter objection,
Google has stated they will produce records showing solely the dates and times
of emails sent by the account holder, if the plaintiff does not object within
20 days.
So how does a defendant go about obtaining potentially
significant evidence from an EC holder like Facebook or Google? Obtain “ the
lawful consent of the originator or an addressee or intended recipient of such
communication, or the subscriber in the case of remote computing service.” (18
U.S.C.A. §2703(b)(3).)
What Must Be Included In a
Consent Form
What must be included in that consent? I have been trying, so
far without success, to obtain that information or a form from either Facebook
or Google. However, from information
available on the internet, I would suggest, at least when the person giving
consent is the subscriber, the following:
1. The full name of the account holder or user of the service
from whom you want the records;
2. The person’s “user id” or “group id” (if available; this is
probably not necessary if the user has an unusual name; it is likely essential
if the user’s name is at all common);
3. If the user’s name is not unusual (this may be unnecessary
where the user’s name is very uncommon so that it will be easy for the ISP to
eliminate all users except the one in whom you are interested), the user’s:
o “user id” or “group id”;
o Birth date; and
o Full address as registered with the ISP;
4. For an email account, the email address;
5. A precise description of the records sought (to avoid
objections of vagueness and overbreadth);
6. Citation to the SCA and in particular to 18 U.S.C.A.
§2703(b)(3); and
7. Have the signature of the person giving consent be notarized.
What if the plaintiff-user refuses to sign a consent? In what
appears to be its form letter response to a civil subpoena, Google cited
authority that a party may be compelled to sign the consent. (O’Grady v.
Superior Court; Flagg, 252 F.R.D. at 348, 366-7).
O’Grady involved Apple suing an
internet news site which had published articles about not-yet-released Apple
products and seeking discovery of emails and other EC records concerning the
sources of that information. As a result, it involves other complicated issues.
Flagg involved a wrongful death suit against the City of Detroit and
several police officers. The plaintiff sought text messages between various
defendants, and others. In that case, the court concluded that a party could be
compelled, in the context of a Rule 34 request for production, to produce
non-privileged and relevant text messages under its control including those
held by the ISP. The Flagg court
relied in part on Quon v. Arch Wireless Operating Co., 529 F.3d 892,
903-09 (9th Cir. 2008). Certiorari has been granted in this case. (130 S. Ct.
1011 (2009).) Facebook’s Director of
Security testified in the Knoxville trial of the student who had hacked into
Sarah Palin’s email and then boasted about it on Facebook, that Facebook
maintains records "continuously".
In either case, the records will be turned over to the
account holder or his attorney only, who may then be compelled to produce them
to the defense. You can assume the EC holder will contend that the records
sought can and should be obtained from the plaintiff directly.
Both Google and Facebook have done so in response to
subpoenas (although Google later dropped that demand when it concluded I was
not seeking “content”). That may be possible depending on the information
sought. However, as anyone who has spent any time on Facebook soon learns,
accessing all of the plaintiff-user’s posted information is virtually
impossible from the user side (at least with regard to active users). I think
that establishing through an initial request for production that this cannot be
achieved is an essential step in setting up getting the records from the EC
holder. Once the plaintiff responds he can’t make a full production (or objects
based on burden), the stage is set for a motion to compel.
Facebook has a “Safety For Law Enforcers” page which includes
information regarding civil subpoenas.6 Among other statements, it says: “If a
Facebook user deletes content from their account, Facebook will not be able to
provide that content.” I’m not sure that is true. Apparently relying on the Flagg case,
Facebook states: “To the extent a user claims it does not have access to
content (e.g., the user terminated their account), Facebook will restore access
to allow that user to collect and produce the information to the extent
possible. Even with consent, Facebook will not produce content to anyone other
than the Facebook user and/or the user’s attorneys.”
In response to a subpoena, Facebook will provide “basic
subscriber information for a particular account.” This is not “content.” It
will only respond to a California or Federal subpoena which should be served
on: Custodian of Records, Facebook, Inc., c/o Corporation Services Company,
2730 Gateway Oaks Drive, Suite 100, Sacramento CA 95833.
Google takes the astonishing (and, I believe, completely
invalid) position that it will only accept subpoenas issued from Santa Clara
Superior Court (home of Silicon Valley). A subpoena to Google must be served on
Google Custodian of Records, 1600 Amphitheater Parkway, Mountain View, CA
94043.
Facebook (and other EC holders, I expect) also demand a fee
to perform a search for a users records. I have found a number of links which
suggest that Facebook’s fee varies. Blog posts have quoted a letter from Facebook demanding a
$150 fee. Its “Safety For Law
Enforcers” page now quotes a price of $500 per user account, plus $100 for a
notarized declaration. Google is not
charging a fee to respond to a subpoena which asks solely for the dates and
times of any activity initiated by the account holder. I haven’t been able in
quick searches to find a statement of their fee and their form letter was
silent on the subject.
Awareness of the types of records an entity such as Facebook
will have which are related to an individual user of the website is helpful in
focusing a “consent” so as to avoid a claim of undue burden by the EC holder. A
broad “all records” request by the user is likely to be met with either a flat
refusal by the site or a demand for a substantial fee for the search and
production of records. I suspect the fees Facebook quotes only get you in the
door. Further, a broad request is likely to yield less information than a more
specific request.
Twitter is a real-time global information network that
lets users create and share ideas and information instantly. People and
organizations send 140-character messages through our website and mobile site,
client applications (e.g., Twitter for Android; Twitter for iOS), SMS, or any
variety of third-party applications. For
more information, please visit: https://about.twitter.com. For the latest on Twitter's features
and functionality please visit their Help Center.
In accordance with our Privacy Policy and Terms of Service, user account information is held by
Twitter, Inc.
Most Twitter account information is public, so anyone can
see it. A Twitter account profile contains a profile photo, header photo,
background image, and status updates, called Tweets. In addition, the account
holder has the option to fill out a location (e.g., San Francisco), a URL
(e.g., twitter.com), and a short "bio" section about the account for
display on their public profile. Please see their Privacy Policy for more information on the data we collect from and about users.
Twitter provides photo hosting for some image uploads
(i.e., pic.twitter.com images) as well as Twitter account profile photos,
header photos, and account background images. However, Twitter is not the sole
photo provider for images that may appear on the Twitter platform. Twitter does
not provide hosting for videos other than those posted to Vine.
What is Vine?
Vine is a standalone mobile service, owned by Twitter,
Inc., that lets users create and share short looping videos. More information
is available in their Help Center.
Twitter retains different types of information for
different time periods. Given Twitter's real-time nature, some information
(e.g., IP logs) may only be stored for a very brief period of time. Some information we store is automatically
collected, while other information is provided at the user’s discretion. Though
we do store this information, we cannot guarantee its accuracy. For example,
the user may have created a fake or anonymous profile. Twitter doesn’t require
real name use, email verification, or identity authentication. More information
on Twitter’s retention policies can be found in their Privacy Policy. Once an account has been
deactivated, there is a very brief period in which we may be able to access account
information, including Tweets. More information about deactivated accounts is
available here. Content deleted by account holders
(e.g., Tweets) is generally not available.
Requests for Twitter
Account Information -
Non-public information about Twitter users will not be
released to law enforcement except in response to appropriate legal process
such as a subpoena, court order, or other valid legal process – or in response
to a valid emergency request, as described below.
Yes. Twitter's policy is to notify users of requests for
their account information, which includes a copy of the request, prior to
disclosure unless we are prohibited from doing so (e.g., an order under 18 U.S.C. § 2705(b)). Exceptions to prior notice may
include exigent or counterproductive circumstances (e.g., emergencies; account
compromises).
When requesting user account information, please include:
·
The @username and URL of the subject Twitter account in
question (e.g., @safety and https://twitter.com/safety);
·
Details about what specific information is requested
(e.g., basic subscriber information) and its relationship to your
investigation;
·
NOTE: Please ensure that the information you seek is not
available from our public API.
·
A valid official email address (e.g., name@agency.gov)
·
Requests may be submitted by fax (1-415-222-9958) or
mail; our contact information is available at the bottom of these Guidelines.
Requests must be made on law enforcement letterhead.
·
NOTE: Twitter does not accept legal process via email
at this time.
Twitter, Inc.
c/o Trust & Safety - Legal Policy
1355 Market Street, Suite 900
San Francisco, CA 94103
Fax: 1-415-222-9958 (attn: Trust & Safety - Legal Policy)