As Internet communications quickly replace the use of pen and paper, the field of electronic discovery continues to increase in importance. Many articles have been written about the ability to request and receive electronic discovery including various forms of social media—such as information from Facebook, LinkedIn, Myspace, Twitter and Instagram.
However, the right to obtain discovery and its actual use to support a claim or defense are two very different battles. In the employment law context, once an employer has obtained social media evidence (whether through discovery or from its own investigation) the question becomes: How is this evidence actually used—if at all—in the course of litigation? Several recent cases around the country have demonstrated unique or creative ways in which social media evidence has been used to either support or defend a claim of employment discrimination.
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