Litigation: Litigating over social media data

The new burdens associated with the rise of social media data may be a rude awakening to some in-house counsel and compliance officers.

If you have recently been involved with civil litigation, you know that defense costs are driven in large part by discovery requirements. Within the discovery process, the largest expenditure of resources often results from e-discovery. E-discovery involves the collection, review and production of forms of electronically stored information that may be relevant to the litigation, such as e-mail, spreadsheets, documents, PDFs, etc. The Federal Rules of Civil Procedure were amended in 2006 to formally account for the use of electronic forms of communication and data in the discovery process by codifying that civil litigants were entitled to discovery of electronically stored information.

Since 2006, companies have increased their reliance on electronic forms of communication. In the last five years, another new form of electronic communication has emerged in many parts of corporate America: social media such as Facebook and Twitter. These new methods of electronic communication not only alter the way companies deliver their message to the public, but they also raise new challenges in the litigation process. They will undoubtedly result in increased litigation burdens for companies that chose to conduct business through this new medium.


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Jamie Fleckner

Jamie Fleckner is a partner in Goodwin Procter’s Litigation Department and heads the firm’s ERISA Litigation Practice. He can be reached at

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