Courts at the trial and appellate levels are increasingly seeing discovery issues in personal injury actions relating to social media outlets such as Facebook, MySpace, YouTube, and Twitter. The overall number of these cases is nevertheless limited. The issues have typically arisen in actions by plaintiffs seeking damages for personal injuries, though the issues will not necessarily be restricted to that genre of claims in the future. The use of social media outlets has become commonplace in the lives of many individuals. On occasion, postings by plaintiffs on social media outlets shed light on the extent of their physical or psychological disabilities and economic losses, whether consistent or inconsistent with their litigation claims. Defendants have no difficulty obtaining the "public" postings of plaintiffs, since the public nature of such postings necessarily represents a waiver of any claim by the plaintiffs to the confidentiality of what is published.1 The discovery complication arises when defendants seek authorization to review the postings of plaintiffs that are marked "private" and not available to the public generally.
A defined set of discovery principles has emerged in the state courts within the past three years regarding discovery of private social media postings. They are summarized here, followed by some observations of my own for trial judges and practitioners.
Disclosure and Privacy
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