Social networking your way to summary judgment

That’s summary judgment, or worse, against you or your client.  Last February we reported on a decision in which a federal magistrate judge ruled, unsurprisingly, that there is no “social networking privilege.” Now Walter Olson reports and links on further developments and thoughts as follows:

Nowhere to hide: When your litigation opponent subpoenas your Facebook, Amazon, MySpace, Flickr, LinkedIn and (locked) Twitter pages.

Of course the current “pages” (or current feeds, etc.), other than a locked Twitter page, should not need to be subpoenaed — they’re up there for the downloading, mainly.  Subpoenas don’t only cost money, they tip off the other side.  But a lawyer might want to subpoena both locked social networking site data, such as postings and other information revealed only to select persons (e.g., in closed Facebook groups or to privileged “friends”), in which case we can expect a more intensive query:  Did the user have, or not have, a reasonable expectation of privacy there, as opposed to what is publicly available?

Kidding!!

More interesting could be data submitted to such websites but not at all intended for publication.  The hunt to shake down that tempting fruit could well be the somewhat easier version of subpoenaing your way through IP addresses with your friendly neighborhood ISP, considering that, like all websites, social network sites disclose that they will comply with any legal process requiring them to cough up information they would otherwise keep confidential.  Indeed, if the target for those seeking the identity of Internet identities in over the last ten years has gone from self-published websites to blogs, the move to social networking sites could give them another bite at the apple at breaking the judicial lip-lock on Internet anonymity.  Is there any reason to posit a distinction here based on the “thinner” cover and, perhaps, the more articulated “social” obligations of users under the terms of use of rich sites such as Amazon and Facebook?

Hmm.

Hat tip to the notionally un-networked, yet ubiquitous, JT!

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Author:Ron Coleman

I write this blog.

3 Responses to “Social networking your way to summary judgment”

  1. November 16, 2008 at 5:03 am #

    1) One should argue that anonymous or pseudonymous postings are those of a fictional character. Ian Fleming should not be put on trial for the extra-judicial executions of James Bond.

    2) There should develop a lawyer standard of due care to subpoena the total postings of the opposing lawyer, searching for improper motive. After the first adverse ruling, seek the total postings of the judge, looking for bias.

    3) The total postings of any government lawyer and of all superiors in the agency, harassing the innocent citizen with government gotcha on bogus government regulation should be demanded and subpoenaed.

    Under no circumstances should the innocent client be left alone to dwell in uncertainty.

Trackbacks/Pingbacks

  1. Nowhere to hide - November 16, 2008

    […] When your litigation opponent subpoenas your Facebook, Amazon, MySpace, Flickr, LinkedIn and (locked) Twitter pages (& Likelihood of Confusion). […]

  2. Blawg Review # 186 | Res Ipsa Blog - November 17, 2008

    […] Daniel Schwartz at the Connecticut Employment Law Blog takes a look at whether social networking sites should be off-limits to discovery in discrimination suits. Ron Coleman at Likelihood of Confusion discusses the expectations of privacy for content uploaded to personal or social networking websites. […]