So You Want to Subpoena Facebook Content…
October 3, 2014 | Sherrard Roe Voigt & Harbison Blog I Ryan T. Holt
Social media is a great source of proof in litigation. Think about a personal injury case where the plaintiff posted pictures online showing he isn’t injured. Or a noncompete case where the salesperson who left the company solicited his former customers on Facebook. Or defamation or false advertising cases, where the defendant made additional false or harmful statements online.
Sometimes the other side left these statements up for the world to see and you can find them yourself. But other times, the other side may have posted them then taken them down. Or their privacy setting may keep you out. Or you may be looking for Facebook messages, which are like emails and aren’t available for the public to view. This type of content would be perfect for a subpoena. It exists out in cyberspace; you can’t access it but Facebook can.
There’s just one problem, and it’s a big one: the federal Stored Communications Act. Although enacted in 1986 when Mark Zuckerberg was just two years old, Facebook has interpreted this law to mean that private parties cannot use subpoenas to obtain any type of social media content (e.g., messages, timelines, photos). The breadth of this law, and whether it should apply to Facebook, is beyond the scope of this blog post. If you are interested, you can start learning more here or here. Suffice it to say that it is not worth your time and money to challenge Facebook in your lawsuit. You already have your adversary. You don’t need to add Facebook.
So what do you do? Facebook has provided an alternative: “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.” In other words, Facebook is saying, “we don’t want to get involved, get it from your adversary directly, and we’ll make it easy for him to download it.” And it is easy, see this explanation. i tried myself, and within 15 seconds I began the download of my entire Facebook archive. Note, however, that some deleted content is erased from Facebook’s servers and therefore unavailable. The content appeared in chronological order and was easy to review.
The moral of the story: you may think you want to subpoena Facebook, but you don’t. Instead, you want to require your adversary to use Facebook’s process to download that information and give it to you. Perhaps the best way to do so is through a Rule 34 request for the production of documents. Both Federal and Tennessee Rule 34 permit a litigant to serve requests for “electronically stored information” that is in the other side’s “possession, custody or control.” Your adversary’s Facebook archive fulfills this test because she can easily download it following the procedures above. If she refuses to comply, in addition to moving to compel, you can serve Rule 33 interrogatories for her Facebook username and profile. With that information, you can log into her Facebook account and download the archive yourself.
