We previously reported on the New York District Attorney’s attempts to obtain tweets by a criminal defendant in People of the State of New York v. Harris, Index No. 080152/2011 and the corresponding challenges asserted by the individual user/defendant and Twitter itself (here and here). Defendant is accused of disorderly conduct for allegedly having blocked traffic during an Occupy Wall Street protest. The District Attorney has sought defendant’s simultaneous tweets that allegedly will undermine his defense that he was forced onto the street by police officers. The trial court first denied defendant’s motion to quash the subpoena served on the social networking site Twitter and then denied Twitter’s own motion to quash.
Twitter has filed an appeal of the trial court’s decision with the Appellate Division, First Department, arguing that Twitter users have standing to quash subpoenas pursuant to Twitter’s terms of service and because defendant’s constitutional rights are implicated by a government-issued subpoena to a third party. The District Attorney has brought an order to show cause as to why Twitter should not be held in contempt for failure to produce the tweets. In response, Twitter has sought a stay of enforcement from the First Department of the trial court’s order pending the appeal. The District Attorney opposes the motion to stay enforcement, citing Harris’s impending trial date. Stay tuned….
Paul A. Saso is a Director on the Gibbons E-Discovery Task Force.