We just wrote about questions concerning subpoenas on Facebook profiles
and it looks like the judge in that particular case has come up with something of a novel solution to the issue. Venkat Balasubramani, who's been following this case closely, notes that the (somewhat frustrated) magistrate judge has offered to set up a special temporary Facebook account, and "friend" the witnesses
, so that the judge can see the photos that are at issue in the case, before closing down the account. The case itself involves a lawsuit against a bar by a woman who fell while attempting to dance on the bar.
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.)
Seems like a creative way to get around some of the privacy issues in the case, though, you do wonder what happens if none of the witnesses wish to participate or share those images.