Judge Offers to Facebook ‘Friend’ Witnesses in Order to Resolve Discovery Dispute — Barnes v. CUS Nashville

[Post by Venkat]

Barnes v. CUS Nashville, LLC, (M.D. Tenn) (June 3, 2010)

I mentioned Barnes v. CUS Nashville in my post about Crispin v. Audigier, a case where a court found that production of private Facebook messages and postings pursuant to a civil subpoena would be barred by the Stored Communications Act. In Barnes, the court also dealt with a civil subpoena to Facebook, and summarily denied a motion to compel, finding similarly that the Facebook information sought by the defendant was covered under the Stored Communications Act. The parties in Barnes engaged in further wrangling (wrangling is an understatement) over the Facebook information of plaintiff and other witnesses, and the magistrate judge came up with an interesting way to resolve the underlying discovery issues.

Barnes is a slip and fall case where plaintiff alleged claims based on injuries arising out of her fall one evening at the “Coyote Ugly” saloon in Nashville:

On or about September 19, 2008, Plaintiff was a business invitee of the Saloon and in that capacity was encouraged by employees of the Saloon to climb onto the Saloon’s bar to dance. At the time of said encouragement, the Saloon’s bar was wet and extremely slick. As a result of the Saloon’s employee’s encouragement, Plaintiff did attempt to climb onto the bar to be photographed with her friends. In so doing, Plaintiff slipped on the wet and slick bar and fell backwards a considerable distance, striking the back of her head on the ground.

Defendant subpoenaed Facebook for plaintiff’s Facebook information, including photos of plaintiff and her friends dancing on the bar. The court quashed the subpoena to Facebook, and in response, defendant issued a subpoena to plaintiff’s friends, who are witnesses in the case. The defendant sought photos posted by plaintiff and her friends that depicted the events on the night in question. The court finds that the subpoenas issued to these witnesses cannot be enforced by the district court in Nashville, and if defendant wants to move to compel, it must do so in Colorado and Kentucky, the districts where the subpoenas were issued out of.

The magistrate judge chastises both parties for their failure to cooperate in the discovery process, and specifically calls out the defendant for its “mishandling of the Facebook subpoena.” The judge then offers to create a Facebook account “for the sole purpose of reviewing photographs and related comments in camera . . . and disseminat[ing] any relevant information to the parties.” Assuming the non-party witnesses (who will be located/contacted via email (!)) will accept the judge’s Facebook friend requests, the magistrate judge agrees to review their Facebook information, provide any relevant information or photographs to the parties, and then close the Facebook account. (It doesn’t seem like the court will store copies of the non-relevant portions of the Facebook pages, even under seal.)

I have to give credit to the court for coming up with this novel approach for resolving this issue. And they say judges are not technically savvy. It’s nice to see a member of the judiciary who doesn’t share the over-the-top view of Facebook friending that’s held by the bar regulators in Florida. (That said, there may be a slew of issues lurking in the background here.)

To Magistrate Judge Brown: Nice work your honor! You should keep in mind those pesky default privacy settings on Facebook. We wouldn’t want you to friend the witnesses, and in the process, disclose to the entire world the private contents of their Facebook pages. Alone these lines, I don’t know the answer to this, but you should confirm the Facebook terms of use to make sure that your creation of a Facebook page and friending of these witnesses doesn’t somehow run afoul of the Facebook terms of service.