By now, nearly every attorney knows that information on social media platforms like Facebook, LinkedIn and Twitter is subject to discovery. It is increasingly common for attorneys to seek discovery of social media, even in civil cases. But as attorneys grow more comfortable requesting such discovery and the courts develop a body of law for resolving social media discovery disputes, it’s worth spending some time to first think about when social media discovery really makes sense.
Generally speaking, discovery of social media may make sense in a variety of business disputes. A social media platform like Facebook may lead to relevant, useful information about the plaintiff in an employment discrimination or harassment lawsuit. In a suit to enforce a former employee’s non-compete agreement, the employee’s social media may have information on when she began working for a competitor and whether she shared confidential information. In a business tort case, a party may discover evidence of wrongful motive or intent relevant to a tortious interference with contract claim on a social media platform. Or, there may be evidence relevant to claims of misappropriation of business opportunities or breach of fiduciary duty. Discovery of social media may also be appropriate in cases involving fraud or misrepresentation. Last, discovery of social media may also make sense in some product liability actions. Plaintiffs often seek damages for emotional distress and social media can be a valuable tool in assessing the validity of the alleged distress.