It is not uncommon for litigants in proceedings pending outside of Massachusetts to need documents or testimony from witnesses who reside in Massachusetts. Even when the witness is willing to provide the requested information voluntarily, it is wise to serve a subpoena to minimize the delay if the witness changes his mind and decides not to cooperate. Indeed, even a "friendly" subpoena carries the threat of contempt sanctions for noncompliance and therefore serves as a powerful deterrent if the witness gets cold feet. A subpoena also has the advantage of preventing the witness from appearing predisposed to provide evidence favorable to the requesting party as may be the case if the evidence is voluntarily provided.
While millions of Americans have become adept at managing their social network privacy settings to keep their postings hidden from the general public, individuals and companies involved in litigation should not expect those settings to shield information from discovery. The recent trend among numerous federal and state courts has been to find that "[Social Networking Site] content is not shielded from discovery simply because it is 'locked' or 'private.'" E.E.O.C. v. Simply Storage Management, LLC, 270 F.R.D. 430 (S.D. Ind. 2010). While "privacy concerns may be germane to the question of whether requested discovery is burdensome or oppressive and...has been sought for a proper purpose...a person's expectation and intent that her communications be maintained as private is not a legitimate basis for shielding those communications from discovery." Simply Storage at 434. Several other recent cases have followed this same reasoning, including Romano v. Steelcase, Inc., 30 Misc.3d 426 (N.Y. Sup. Ct. 2010) (ordering access to plaintiff's Facebook and MySpace records); Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D. Penn. June 22, 2011) (ordering production of relevant information housed on Facebook after in camera review).