People post to social networking sites such as Facebook and MySpace as part of their daily routines. These posts are often forgotten as soon as they are uploaded. But not if I can help it. Increasingly, employment defense lawyers are mining internet posts for use as admissions against their authors. As Yosemite Sam once remarked, “There’s gold in them there hills.” And there is. Really. However, like gold, finding these internet nuggets is not easy. The primary obstacle is the Stored Communications Act, 18 U.S.C. § 2701, et. seq., which generally prohibits production of electronically stored communications. Disclosure in violation of the act can expose the record holder to civil liability. Theofel v Farey-Jones 359 F.3d 1066 (9th Cir. 2004). However, like any complex statute (and this one surely is), the SCA has certain exceptions, including § 2701(c)(2), which allows production when the release is authorized “by a user of that service.” Hence, although you cannot subpoena a provider directly, in California it appears that the required “authorization” can be compelled by a Court. In O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 1446 (2006), for example, the Court of Appeal for the Sixth District held that “[w]here a party to the communication is also a party to the litigation, it would seem within the power of a court to require his consent to disclosure on pain of discovery sanctions.”
