Discovery Rules Continue to Evolve for Cases Involving Social Media

Your social media content is not only susceptible to hacking; it’s also susceptible to disclosure requests from civil litigants (see our Sept. 14 blog post for more details) and even prosecutors without your consent if they have a warrant. According to a California appeals court, however, federal Internet privacy laws can stop social media companies like Facebook, Twitter and Instagram from disclosing your social media content—at least to criminal defendants during pretrial discovery.

For example, the federal Stored Communications Act (SCA) forbids social media sites and other Internet service providers from knowingly disclosing user information. Although there are certain exceptions, such as one where the government may require disclosure of such information pursuant to a criminal investigation, California’s First District Court of Appeal in Facebook v. Superior Court of San Francisco City held that the SCA prohibits criminal defendants from doing the same to build their defense case before trial.

In the underlying case, prosecutors used social media information as evidence to indict defendants Lee Sullivan and Derrick Hunter for a gang-related murder. In an effort to obtain evidence to attack the credibility of the prosecutors’ main witness, Sullivan’s ex-girlfriend, defense attorneys subpoenaed Facebook, Instagram and Twitter for her posts and activity logs, which they claimed would show that jealousy was the motivating factor for testifying against Sullivan. The First District Court of Appeal concluded that federal law did not allow the social media companies to disclose the requested information to the defense attorneys and that the inability to obtain the requested information during pretrial discovery would not jeopardize the defendant’s constitutional right to a fair trial.

Nevertheless, the court limited its holding by noting that its decision does not “preclude Defendants from seeking at trial the production of the materials sought here (or petitioners again seeking to quash [the] subpoenas), where the trial court would be far better equipped to balance the Defendants’ need for effective cross-examination and the policies the SCA is intended to serve.”

It will be interesting to see how this case turns out if the defense attorneys accept the court’s invitation to pursue the requested social media content at trial, as well as how other courts will handle similar situations. One thing is certain—cases involving social media will continue to introduce new wrinkles in the discovery process.