Electronic Discovery and Social Networking

With the rise of social media, new issues in electronic discovery of litigants’ online lives have emerged.  The use of subpoenas to obtain evidence of personal lives of litigants is increasing.  Privacy may extend to include email, and personal messages in Facebook, Twitter, etc.  But things posted so that everyone can see are generally not protected and are both discoverable and relevant at trial.[1]  “Because your [Facebook or MySpace] account information is stored on an [Internet Service Provider] company’s server, on the ‘cloud’ that is the Internet rather than on your personal laptop, the company owns it, not you. While accessing your laptop may require a difficult-to-obtain search warrant, getting certain data on Facebook, My-Space, Meetup, LinkedIn and other social-networking sites’ servers may require only a simple subpoena.”[2]

In a case in which a high school student claimed private information posted on her MySpace page was republished by her school’s principal, the plaintiff was unable to recover for the tort of invasion of privacy and intentional infliction of emotional distress.[3]  The court held that “the facts contained in the article were not private.  Rather, once posted on myspace.com, this article was available to anyone with internet access.”[4]  Even though the author first posted the article to her website under her first name only, the court decided against the plaintiff because she took the initial affirmative act of posting it on the internet.[5]

“In some instances, [social media] may even level the playing field relating to electronic discovery.”[6]  Because of the tremendous volume of records a typical corporate defendant possesses, these defendants are much more likely to bear significant risks and costs of electronic discovery.  Now, however, information posted on a plaintiff’s Facebook account that damages his/her claims, will often vindicate defendants.[7]

In Mackelprang v. Fidelity National Title Agency of Nevada, Inc., the court addressed a discovery dispute relating to a plaintiff’s two Myspace.com accounts.[8]  The court held that, in seeking to prove that the plaintiff had actually welcomed the sexual messages she claimed were harassing her, the defendant had cast too wide a net in trying to discover her other personal MySpace messages.[9]  The defendant did not have a legitimate basis to conclude it would find relevant information, and therefore the court denied its “fishing expedition.”[10]  The Court stated that Defendant was engaging in a fishing expedition since it has nothing more than suspicion or speculation as to what information might be contained in the private messages.[11]

In contrast to Mackelprang, in EEOC v. Simply Storage Management, the court found that, when discovering claimant’s Facebook messages and postings, the appropriate scope of relevance is “any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries)…that reveal, refer, or relate to any emotion, feeling, or mental state.”[12]  In allowing a wide net to be cast for discovery, the court noted that “Facebook is not used as a means by which account holders carry on monologues with themselves,” and therefore privacy interests of the claimant are less of a concern.[13]

The field of electronic discovery is still evolving, and new developments will continue to shape the law.   Courts will be forced to balance privacy interests of litigants with the potential relevance of social media information, while often considering the fact that litigants initially shared the information they are trying to shield from discovery.  As new forms of social media emerge, these issues will only become more complex.

[1] Monique C.M. Leahy, Facebook, MySpace, LinkedIn, Twitter, and Other Social Media in Trials, 122 Am. Jur. Trials 421 (2011).

[2] Id.

[3] Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 991 (C.D. Cal. 2010).

[4] Moreno v. Hanford Sentinel, Inc., 172 Cal. App. 4th 1125, 1128, (2009).

[5]  Monique C.M. Leahy, Facebook, MySpace, LinkedIn, Twitter, and Other Social Media in Trials, 122 Am. Jur. Trials 421 (2011).

[6] Jonathan E. DeMay, The Implications of the Social Media Revolution on Discovery in U.S. Litigation, Brief, Summer 2011, at 55, 56.

[7] Id.

[8] Mackelprang v. Fid. Nat. Title Agency of Nevada, Inc., 2007 WL 119149, at *2 (D. Nev. Jan. 9, 2007).

[9] Id.

[10] Id. at *7.

[11] Id. at *2.

[12] E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 436 (S.D. Ind. 2010).

[13] Id. at 437 (quoting Leduc v. Roman, 2009 CanLII 6838 at ¶ 31.).

Author: Nicholas Carey

Nicholas Carey is a Managing Articles Editor on the Journal. His note on the complex jurisdictional and economic issues of state and local taxation of internet commerce will appear in volume 40 of the Journal. At Rutgers, Nick is also a member of the Moot Court Board and a student attorney for the Rutgers Federal Tax Clinic. He has also interned for Judge James S. Rothschild, Jr., J.S.C., in the Essex Vicinage, for the Hackensack, NJ law firm of Breslin and Breslin, and the national innocence project Centurion Ministries. Nick graduated from New York University in 2011 with a bachelor’s degree in economics. His hobbies include watching films, basketball, and travelling.

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