Social media’s fast growth has created yet another e-discovery headache for inside counsel. Federal Rule of Civil Procedure 26 (b)(1) allows discovery of relevant, non-privileged ESI. Under Rule 26(b)(1), data from outside social media sites like Facebook and Twitter is generally discoverable.
Social media presents unique challenges during litigation, because data changes fast, content often resides on third-party servers, and getting access may require knowledge of passwords or other privacy settings. Earlier versions are easily lost because few technologies exist to preserve social media.
3. Producing social media content
To date, the majority of court opinions regarding social media have dealt with production disputes and claims of privacy regarding content. For the most part, courts have refused to create a privilege for social media content, even when the account holder uses site features to limit viewer access. Instead, courts considering the question have generally found so-called restricted access private information to be within the scope of discovery as long as it is relevant.