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feature article
ocial networking is here to stay.
Facebook has more than 845 mil-
lion monthly active users, with
nearly 483 million daily active users.
LinkedIn has more than 135 million
users in 200 countries.
Well over 200
million tweets are sent every day on
New social media utilities
and applications are popping up daily.
Moreover, social media use is not limited
to individuals, as companies are increas-
ingly using these outlets to promote their
products or services and to connect with
potential customers.
The biggest concern with social
media is not its prevalence, but rather the
informality associated with the content
posted. In most instances, users hast-
ily post candid messages from iPhones,
Blackberries or other smartphones, often
saying things they would never say in a
formal letter. Users may post where they
are, who they are with and what they
are doing. As a result, social networks
have become gold mines for prejudicial
information that can be a game-changer
in litigation.
Not surprisingly, savvy trial lawyers
are routinely requesting access to users’
social networking history and courts are
often requiring that such information be
produced. In most cases, courts weigh
the relevancy of the information against
the user’s privacy concerns. For example,
Equal Employment Opportunity
Cmm’n v. Simply Storage Mgmt. LLC,
plaintiffs alleged severe emotional dis-
tress resulting from sexual harassment
in their workplace. Rather than tailor
discovery requests to the claimed inju-
By Bryce A. Lenox
ries, the defendant requested all profiles,
postings, photographs, videos and other
materials from the claimants’ Facebook
and Myspace pages.
The court first noted that discovery
relating to social media “requires the
application of basic discovery principles
in a novel context.”
The court held that
while a party may be entitled to social
media content that is related to a claim
or defense in a case, not all information
must be disclosed.
As for privacy, the
court dismissed the claimants’ argument
that privacy settings should protect their
posts from discovery, stating “a person’s
expectation and intent that her com-
munications be maintained as private is
not a legitimate basis for shielding those
communications from discovery.”
As a
result, the court looked to the substance
of the communications and required the
plaintiffs to disclose all messages, profiles
or postings, including photographs, “that
reveal, refer to or relate to any emo-
tions, feelings, or mental state, as well as
communications that reveal, refer to or
relate to events that could reasonably be
expected to produce a significant emo-
tion, feeling or mental state.”
McMillan v. Hummingbird
the court also looked to the
relevance of information found on the
plaintiff’s social network when determin-
ing whether certain information was
discoverable. The court held that “where
there is an indication that a person’s
social network sites contain information
relevant to the prosecution or defense of
a lawsuit ... access to those sites should
be freely granted.”
The court specifi-
cally noted that users of social media
oftentimes are indiscreet in their post-
ings, and when “their indiscretions are
pertinent to issues raised in a lawsuit in
which they have been named, the search
for truth should prevail. …”
The court
similarly rejected the plaintiff’s claim of
privacy, stating that “while it is con-
ceivable that a person could use [social
media] as forums to divulge and seek
advice on personal and private matters, it
would be unrealistic to expect that such
disclosures would be confidential.”
Tompkins v. Detroit Metropolitan
the Eastern District of Michi-
gan held that material posted on a private
Facebook account and not accessible to
the public generally is not privileged, nor
is it protected by the law of privacy. Con-
versely, the court held that a litigant does
not have a generalized right to informa-
tion restricted from public view, for that
Social Media and Discovery:
Be Careful What You Post
Many courts have looked to the social networks’
policies and procedures to evaluate the
expectation of privacy a user may, or in most
instances, may not have.
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