Facebook Discovery and the Unbearable Sameness of Internet Law

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48 ARKANSAS LAW REVIEW [Vol. 65:39 communications, although sensitive, are not more likely to be sensitive than financial records, or private papers held in storage, or mail held in a private mailbox. In at least this respect, the ECPA is therefore an example of a precipitous reaction by the legislature to changed technology, even when there was no real need to change the law at all. 31 Lawyers unfamiliar with the ECPA might be forgiven for not anticipating that the law would change in this way. In any event, the practical effect of the change in most cases will be muted. Even if a nonparty ISP cannot be subpoenaed directly to produce a person’s communications relevant to the dispute, the person him- or herself can. That is, a party to a civil lawsuit can simply propound a Rule 34 document request on his or her opposing party to produce relevant electronic communications from the opposing party’s ISP, or subpoena a nonparty to do so. As long as opposing parties still have access to their accounts, the documents are likely to be held within their “possession, custody, or control.” Indeed, several courts have ordered parties to produce their social-networking communications or other messages, or at least consent to their production by the relevant ISP. 32 Such an order does not fall afoul of the ECPA, because as one court noted, an ordinary individual is not an ISP, and thus is not subject to any of the disclosure prohibitions in section 2702. 33 III. FALSE POSITIVES: DISCOVERY OF SOCIAL NETWORK POSTS The unavailability of subpoenas for nonparty ISPs under the ECPA is not a serious impediment to discovery, as discovery may be had directly from the party itself. Under Rule 34 of the Federal Rules of Civil Procedure and equivalent state rules, a party can request another person or party “to produce and permit 31. Protecting the privacy of electronic and telephonic communications has been a vexing problem for Congress and for courts since the early days of the twentieth century. See generally Boyden, supra note 23, at 6-1 to 6-10. 32. See, e.g., Flagg v. City of Detroit, 252 F.R.D. 346, 359 (E.D. Mich. 2008) (ordering production of text messages); People v. Christian, No. 08F09791 (Cal. Super. Ct. Feb. 4, 2011) (ordering juror to consent to production of Facebook posts made during trial to the court). 33. Largent v. Reed, No. 2009-1823, 2011 WL 5632688, at *6-7 (Pa. Ct. C.P. Nov. 8, 2011).
2012] OVERSHARING: FACEBOOK DISCOVERY 49 the requesting party or its representative to inspect, copy, test, or sample” designated documents, electronically stored information, or tangible things “in the responding party’s possession, custody, or control.” 34 This includes socialnetworking messages, comments, and posts, which are “documents or electronically stored information,” defined under Rule 34 as including any writing “stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” 35 Such materials must therefore be produced if requested, as long as they fit within the Rules’ broad definition of relevance and are neither protected by any privilege 36 nor unduly burdensome in one of the ways specified by the Rules. 37 And materials held by a nonparty ISP such as Facebook will nevertheless be within a party’s “custody, possession, or control” as long as the party has the right to access and copy those materials. 38 Facebook itself offers users 34. FED. R. CIV. P. 34(a)(1). Many of the decisions discussed below were rendered under state law, particularly New York and Pennsylvania, but state rules of civil procedure are similar. See, e.g., N.Y. C.P.L.R. 3120(1)(i) (McKinney 2005) (party may request another party or person “to produce and permit the party seeking discovery . . . to inspect, copy, test or photograph any designated documents or any things which are in the possession, custody or control of the party or person served”); PA. R.C.P. NO. 4009.1 (party may request another party or person “to produce and permit the requesting party . . . to inspect and copy any designated documents . . . or to inspect, copy, test or sample any tangible things . . . which are in the possession, custody or control of the party or person upon whom the request or subpoena is served”). 35. FED. R. CIV. P. 34(a)(1)(A). The term “electronically stored information” was added in 2006 merely “to confirm that discovery of electronically stored information stands on equal footing with discovery of paper documents.” FED. R. CIV. P. 34(a) advisory committee note to 2006 amendment. 36. FED. R. CIV. P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.”); FED. R. CIV. P. 26(b)(3) (protecting work product prepared in anticipation of litigation). 37. See FED. R. CIV. P. 26(b)(2). 38. See Buckley v. Vidal, 50 F.R.D. 271, 274 (S.D.N.Y. 1970) (“Production may be ordered when a party has the legal right to obtain papers, even though he has no copy, and regardless of whether a paper is beyond the jurisdiction of the court.”); MOORE ET AL., supra note 18, § 34.14[b] (control includes “the legal right to obtain the documents requested upon demand” (quoting Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984))).
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Facebook Discovery and the Unbearable Sameness of Internet Law

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