June 08, 2012
Court Orders Facebooking Juror to Disclose Additional Facebook Posts--Juror No. 1 v. Superior Court
[Post by Venkat Balasubramani]
Juror Number One v. Superior Court, C067309 (Ca Ct. App.; May 31, 2012)
A California Appeals Court ruled that although a juror’s Facebook posts were covered by the Stored Communications Act, the juror can be compelled to give his consent to their production by Facebook.
Background: Juror No. 1 sat on a criminal trial lasting approximately two months. The jury returned guilty verdicts. During the trial, Juror No. 1 posted several times to Facebook, despite the court’s instructions to stay off the internet. Another juror filed a declaration saying that Juror No. 1 posted comments about the evidence on his Facebook wall, inviting his friends to respond.
The trial court conducted a hearing and Juror No. 1 acknowledged making multiple posts, including on one occasion a comment about the evidence. The trial court said that this was clearly misconduct, but the extent of the misconduct was still unclear. In response, the defendant subpoenaed Facebook. Facebook moved to quash the subpoena based on the Stored Communications Act. The defendant turned around and issued a subpoena to Juror No. 1, who also moved to quash the subpoena. The trial court issued an order requiring Juror No. 1 to turn over his Facebook posts (made during the trial) to the court for in camera review, and to consent to their disclosure by Facebook.
Analysis: The court canvasses the history of the Stored Communications act and acknowledges that because it was enacted in the 80s, its definitions do not track neatly to modern day social networks and things like cloud services. Nevertheless, the court says that the SCA was intended to protect things like private bulletin boards which can roughly be analogized to certain types of social networks. In Crispin v. Audigier, the district court said that Facebook posts may be protected by the SCA. However in Crispin, the court said that this depended on the privacy settings in question, and like in Crispin, in this case Juror No. 1 did not provide the court with enough detail to determine whether the posts were covered or not. (The court distinguishes Moreno v. Hartford Sentinel, a case involving the privacy of MySpace posts, on the basis that in that case, there was no dispute that the posts were open to the public.)
Even assuming the posts are protected, the court says that there is no bar on forced disclosure, since “the compulsion is on Juror No. 1, not Facebook.” The court cites to Flagg v. City of Detroit, a civil discovery dispute where a party sought disclosure of text messages. In Flagg, the court held that while the text messages were practically under the control of the service provider, they were “constructively” under the control of the party and “thus subject to discovery under the federal rules.” In Flagg, the court said that the party who could be forced to disclose the messages was required to execute a consent so the messages could be obtained from the service provider. The court also dismisses Juror No. 1’s other objections, based on the Fourth and Fifth Amendments and California statutes.
A concurring judge agrees with the result, noting that there was evidence of impropriety and the trial court appropriately took the necessary steps to rule out whether Juror No. 1’s Facebook posts prejudiced the proceedings. While “fishing expeditions” are not appropriate, in this case, there was enough evidence of misconduct that it made sense for the trial court to take the necessary steps to rule out prejudice. However, the concurring judge says that the issue of whether the posts could be obtained from Juror No. 1 is different from whether it can be obtained from Facebook itself. Importantly, the opinion also notes in a footnote that Facebook provided to Juror No. 1, copies of the posts in question, including presumably those posts that Juror No. 1 had deleted.
Oy. I bet Juror No. 1 wishes that he had heeded the court’s instructions to stay away from the internet during trial.
The court’s decision here can be contrasted with two recent cases (that I meant to blog about but never got around to).
• Commonwealth v. Werner involved a larceny conviction where one of the jurors posted on Facebook while the trial was ongoing. Although the court issued a subpoena to Facebook, Facebook never responded. The court held a hearing without the benefit of any response from Facebook and found that while there was misconduct, it was not prejudicial.
• Special Markets Ins. v. Lynch was a garden variety business/employment dispute. Plaintif subpoenaed emails from Yahoo and voice and text messages from Verizon. The court says that the information sought is available from the defendants and it was improper for plaintiff to issue “dragnet” subpoenas to third parties. (See also Theofel v. Farey Jones.) Not only does the court quash the subpoenas, the court issues a show cause order signaling that it’s willing to award fees to the defendants.
We’ve blogged about a slew of cases where courts struggle with whether and how a party seeking discovery can obtain social networking posts in civil litigation. To say that least, courts are across the board, but for the most part, courts all agree that just because something is posted to a relatively private social network it is not off limits. Courts also agree that defendants shouldn’t be able to rummage around in someone’s account and this presents privacy issues. Where courts have really struggled is with the logistics. This case is no different. The concurring opinion acknowledges that Facebook had provided the posts in question to Juror No. 1, I don’t see why the court makes him sign a consent to have Facebook produce the information. Here, of course, Juror No. 1 expressly disregarded the court’s instructions on the use of social networking, and could face other consequences. I’m surprised the appeals court couldn’t say that the trial court could have used its contempt power to force disclosure (by Juror No. 1) of the posts in question.
Facebook Messages/Wall Posts, Civil Discovery, and the Stored Communications Act -- Crispin v. Audigier
Judge Offers to Facebook 'Friend' Witnesses in Order to Resolve Discovery Dispute -- Barnes v. CUS Nashville
Pennsylvania Court Orders Personal Injury Plaintiff to Turn Over Facebook Password to Defendant -- Largent v. Reed
Plaintiff Can't be Forced to Accept Defense Counsel's Facebook Friend Request in Personal Injury Case -- Piccolo v. Paterson
Court Orders Plaintiff to Turn Over Facebook and MySpace Passwords in Discovery Dispute -- Zimmerman v. Weis Markets, Inc.
Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case -- McMillen v. Hummingbird Speedway
Insurance Company's Request to Compel Production of Facebook Password Fails (with Costs)--Chauvin v. State Farm Mutual