Litigation: The risks and opportunities of social media

Growing case law allowing for the discovery of social media content has significant implications for litigation strategy

Facebook, Twitter, YouTube, LinkedIn and MySpace. These words have become part of our social and cultural lexicon. Unless you have been completely oblivious to advancing technology, you have probably heard about these social media tools or even used them in your personal life. But social media has evolved from merely a personal pastime to a vital part of professional industries. In the legal world, the role of social media has become more prevalent in the past few years. Lawyers and their clients are grappling with how this emerging technology will affect their cases.

Although the growth and popularity of social media affects numerous aspects of litigation, the role it plays in civil litigation discovery has been one of the hottest issues. The Federal Rules of Civil Procedure 26(b) allow liberal discovery such that “any nonprivileged matter that is relevant to any party’s claim or defense” is discoverable. Most states have a similarly broad approach to discovery. In the past few years, social media has already dramatically changed the scope of discovery, and courts are weighing in on when social media content is discoverable. As technology advances, potentially discoverable information that is generated and stored in social media sites must now be considered as part of a litigation strategy.

For instance, in one 2010 case out of the Southern District of Indiana, Equal Employment Opportunity Commission v. Simply Storage Management, which is often relied on for the standard for discovery of social media content, two former employees alleged sexual harassment by their former employer. The defendant sought information about the former employees that was available on social networking sites. Specifically, the employer sought the public profiles of the former employees, as well as communications (including photos and videos) from their Facebook and MySpace accounts. In deciding that the defendant was entitled to some of the documents (including status updates, wall comments, causes or groups joined, activity streams and blog entries), the court noted that content on social networking sites is not shielded from discovery simply because the content is “locked” from public view or is “private.” Other federal courts have followed this trend that social media content must be produced when it is relevant to a claim or defense in the case (see Robinson v. Jones Lang LaSalle Americas, Inc., an August case out of the District of Oregon that ordered the production of “online social media communications by plaintiff, including profiles, postings, messages, status updates, wall comments, causes joined, groups joined, activity streams, applications, blog entries, photographs, or media clips, as well as third-party online social media communications that place plaintiff's own communications in context”).

This growing case law allowing discovery of social media content has significant implications for litigation strategy for both parties. Lawyers and their clients must keep in mind the risks and opportunities associated with social media. One important step is to evaluate early on in a case whether relevant information exists on social media sites. This includes researching whether there is information regarding the opposing party that can support its claims or defenses, and seeking discovery of such information.

Even before there is litigation, lawyers should advise their clients that social media content may be discoverable. For instance, companies that use blogs, Facebook pages or other similar social media to promote themselves should be cautious about the nature of the content. Companies should also be aware that simply because the technology is private or available only for internal use will not necessarily insulate the content from discovery. These issues may not be limited to company-sponsored content; it could possibly extend to content that employees post on their personal social media sites.

Conclusion

Counsel must be aware of the growing trend involving discovery of social media content when representing their clients in litigation. Courts are taking notice of this important technology and crafting rules that will necessarily have effects on corporate clients.

Contributing Author

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Michael Lynch

Michael C. Lynch is a partner and litigator in the New York office of Kelley Drye & Warren LLP. He has extensive experience in complex,...

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Contributing Author

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Lystra Batchoo

Lystra Batchoo is an associate in the New York office of Kelley Drye & Warren LLP. She focuses on civil litigation, including complex, commercial litigation, contract...

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