Experienced litigators learn the hard way that some institutions regard themselves as too big to comply with the humdrum requirements of the law. I've seen large institutions simply ignore a subpoena, not even bothering to show up as directed. Yale University is notorious for doing this; so are some of the state's larger hospitals.
Judges are reluctant for reasons I do not understand to issue capias warrants requiring these institutions to appear in court. Only little people get arrested, taken into custody, and hauled into court for ignoring a subpoena.
Add Facebook to the list of contemnors.
Only this time, there's more than a subpoena; there's a court order in addition to the subpoena. Next comes a show cause hearings.
At issue is a subpoena initially served on Facebook's agent for service by the public defender's office in New Britain. The subpoena sought records the defense deems necessary in a criminal case, records of communications posted on Facebook.
Facebook does business in Connecticut. It has a registered agent for service. A marshal served Facebook, and the company responded by way of a letter from a lawyer on the West Coast listing all the reasons the company thought it didn't have to comply.
Nonlawyers and nonlitigators can be forgiven for thinking a letter would do. But a subpoena is a court order. All Connecticut lawyers are also commissioners of the Superior Court, empowered with the right to issue such orders.
Folks receiving them don't have the right to say "never mind." If you want to contest a subpoena, you do so with a motion to quash, filed in court.
The public defender's office next asked the presiding judge to sign an order requiring Facebook to appear. When I took over the case, questions arose about whether the order had ever been served on Facebook, so I had a marshal serve Facebook's agent for service.
Facebook had a West Coast lawyer send another dismissive letter, listing the reasons why it would not comply with the subpoena. No motion to quash was filed. No one appeared for Facebook at the scheduled hearing.
I've filed a motion for a capias warrant for Mark Zuckerberg, Facebook's president. Someone has to be accountable at the company, right?
The court appears concerned less with the fact that Facebook ignored a subpoena sent by a commissioner of the Superior Court than it does with the fact that Facebook has ignored an order of a judge of the Superior Court.
One of the truly bizarre things about the Facebook correspondence is its claim that if the prosecution were to ask for material, it would be willing to turn it over. But it will not respond to a request for information from a defendant, even if the request comes from a public defender's office.
Say, what? Facebook is willing to assist the prosecution and not the defense?
I'll need more than a letter to satisfy me that this is lawful. I'd like to get a talking head from Facebook on the stand to explain this species of reasoning.
Social media is everywhere these days, linking strangers to one another and earning enormous profits from the business it does in every state. In criminal and civil cases, social media evidence is now necessary to protect the rights and interests of private parties. No company, no matter how large, ought to be able to do business in a state without being accountable to lawful process.
If Facebook refuses to respond to the order to show cause, I'll renew my claim for a capias warrant for Mr. Zuckerberg. He and his company have some explaining to do.