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.

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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