FACEBOOK INFORMATION PROTECTED BY FEDERAL LAW
This is an update to a story from a few months ago in which we noted that the Philadelphia Bar Association issued an advisory that stated that it is unethical to gain access to a witness’ social networking web site by using a "friend" not affiliated with the litigation.
In an ongoing Worker’s Compensation case in Virginia, a defense attorney subpoenaed Facebook in order to gain access to the plaintiff’s personal page. These personal pages contain pictures, video, and text updates from their users. Facebook declined to respond, arguing that the Federal Electronics Communications Privacy Act prohibited it from responding to the subpoena. Subsequently, a $200 a day fine was levied against the company for failing to respond to a subpoena. However, upon reviewing the case, the Chief Deputy Commissioner of the Virginia Workers' Compensation Commission agreed with Facebook’s position and vacated the $200-per-day fine.
My two cents: Our first post about this topic dealt with attempting to gain access to plaintiff’s social network information via concealment. This new case indicates that a plaintiff’s social network information might be privileged even in the face of a court order. Although this issue has not yet been addressed in Alabama, I would expect a similar result.