By Andy Furillo
afurillo@sacbee.com
With Facebook facing a possible contempt of court citation, attorneys for the social networking giant have apologized for the company's failure to appear at Sacramento court hearing last month where defense lawyers had sought a juror's posted musings in a gang-beating case.
The defense lawyers said the Facebook employee who processes subpoenas failed to see that the demands for the postings came with an attached court order.
Despite the apology, the Facebook lawyers in court papers filed last week refused to turn over the juror's posted remarks. They said that such a disclosure would violate the federal Stored Communications Act.
Another hearing on the request for the postings is scheduled for Friday in front of Sacramento Superior Court Judge Michael P. Kenny.
The judge last month issued an order to show cause why Facebook should not be held in contempt after no company representative appeared in court on Dec. 17 on the defense motion to obtain the postings.
Former U.S. Attorney McGregor Scott was one of the two Facebook attorneys from the firm of Orrick, Herrington and Sutcliffe who filed the papers last week.
"This was just a matter of inadvertence and oversight and there was nothing purposeful by Facebook in overlooking the subpoena," said Scott, who used to head the federal prosecution office for the Eastern District of California.
Mike Wise, the Sacramento lawyer for one of the five accused gang members who subpoenaed the postings, hunkered down with the Facebook papers today to prepare a response.
Wise said the attorneys still want the postings and that the company's refusal to turn them over could create "a bit of a Constitutional issue."
"A criminal defendant has a right to compulsory process," Wise said.
Facebook's court papers said the company "apologizes for any inconvenience incurred by the court and the parties that resulted from its administrative error."
The apology was contained in a motion by the company to quash the subpoena filed by the defense lawyers in the Killa Mobb gang case. Five purported members of the gang were convicted last year in the 2008 Halloween Night beating of a man in a gas station near the Arden Fair Mall.
During the trial, a juror posted on his Facebook page that he was on the jury and he mentioned in one message that the proceedings at time became boring.
The defense lawyers subpoenaed Facebook for all of the juror's postings in the trial, as well as any that may have been sent to him by his friends concerning the trial. They said they were concerned that his friends' comments may have affected his decision in the case.
In their court papers, the Facebook lawyers said the 1986 Stored Communications Action precludes them from providing the information. They said that exceptions to the act, which was passed by Congress with the intent of protecting Internet privacy, would allow them to furnish the information only under a court order sought by a governmental agency.
They also said the juror, Arturo Ramirez, would be free to provide the information to the defense lawyers on his own and that they would be "happy" to help him retrieve the postings if he gave his consent.
Ramirez said in a previous interview with The Bee that he had no problem turning the information over to the defense lawyers.
Call The Bee's Andy Furillo, (916) 321-1141.
About Comments
Reader comments on Sacbee.com are the opinions of the writer, not The Sacramento Bee. If you see an objectionable comment, click the "report abuse" button below it. We will delete comments containing inappropriate links, obscenities, hate speech, and personal attacks. Flagrant or repeat violators will be banned. See more about comments here.