Litigation: When discovery of social media makes sense in civil cases
As attorneys grow more comfortable requesting social media discovery, its worth spending some time to first think about when discovery really makes sense.
August 15, 2013 at 07:49 AM
5 minute read
The original version of this story was published on Law.com
By now, nearly every attorney knows that information on social media platforms like Facebook, LinkedIn and Twitter is subject to discovery. It is increasingly common for attorneys to seek discovery of social media, even in civil cases. But as attorneys grow more comfortable requesting such discovery and the courts develop a body of law for resolving social media discovery disputes, it's worth spending some time to first think about when social media discovery really makes sense.
Generally speaking, discovery of social media may make sense in a variety of business disputes. A social media platform like Facebook may lead to relevant, useful information about the plaintiff in an employment discrimination or harassment lawsuit. In a suit to enforce a former employee's non-compete agreement, the employee's social media may have information on when she began working for a competitor and whether she shared confidential information. In a business tort case, a party may discover evidence of wrongful motive or intent relevant to a tortious interference with contract claim on a social media platform. Or, there may be evidence relevant to claims of misappropriation of business opportunities or breach of fiduciary duty. Discovery of social media may also be appropriate in cases involving fraud or misrepresentation. Last, discovery of social media may also make sense in some product liability actions. Plaintiffs often seek damages for emotional distress and social media can be a valuable tool in assessing the validity of the alleged distress.
But some courts have limited such requests in civil cases absent a good reason to believe that the private, non-public information contained on social media platforms is likely to have relevant information not already contained in the platform's public content. For example, in the recent case Giacchetto v. Patchogue-Medford Union Free Sch. Dist., a court acknowledged legal rulings that have limited access to private information, but noted this approach is at once too broad and too narrow. On the one hand, the court explained that a plaintiff should not be required to turn over the private section of his Facebook profile merely because the public section undermines the plaintiff's claims. But, on the other hand, the court said that a plaintiff should be required to review the private section of the profile and produce any relevant information under the basic principles of discovery, regardless of what is reflected in the public section. Still, the court cautioned that “a plaintiff's entire social networking account is not necessarily relevant simply because he or she is seeking emotional distress damages.”
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