How to Draft Subpoenas for Email or Social Media Content: "That's Not How Any Of This Works"
Friday, March 6, 2015

There’s no escaping email or social media; once your grandmother starts “liking” every single post you make, you know that social media’s presence in our lives is unstoppable.  As lawyers, we know that the universal use of email and social media can be a goldmine in discovery in every single case, from family law to personal injury to fraud.  However, the laws governing issuing a subpoena to email and social media companies are fraught with landmines for practitioners.

As detailed in Keith Lee’s article Social Media Subpoena Guide 2015 Edition, the courts have not made the discovery process any easier, as conflicting opinions abound as to how the Stored Communications Act (18 U.S.C. § 2701) applies to email and social media content. 

Lee summarizes several conflicting court decisions, and narrows his advice for drafting a subpoena to the following:  1) Only seek out quasi-public messages or postings (think a Facebook wall post, as opposed to a private message); and 2) Narrowly construe your request in both time and content, as required under the Rules of Evidence.  Of course, Lee concedes, given the fluid nature of technology, even these tips might not result in success. 

The law in this area is evolving, and there is no end in sight, a status that ensures that protracted fights over subpoenas to email and social media companies will continue.

 

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