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Discoverability of Social Media Evidence in Litigation

April 11, 2016

Author Erik Qualman once said, “[t]he power of social media is it forces necessary change.”

While some might differ in opinion as to the use of the word “necessary” in the aforementioned quote, the fact that technology has changed the world is undeniable. With the explosive growth of social media, lawyers and clients are impacted by the evolving nature of discoverable evidence in a civil lawsuit.

In New York, Civil Practice rules require full disclosure of all “material and necessary” evidence in a civil suit. New York’s liberal threshold for discoverability has been dubbed “generous and sweeping.”1

How do traditional discovery principles shake out amidst the social media surge? Lawyers and courts grapple with the answer to this question as it is posed with increasing regularity. One thing is certain: social media isn’t going anywhere any time soon. In the spirit of embracing that reality, a few thoughts:

  • “Privacy”- It might not mean what you think it means. Social media users may think that by self-regulating their privacy settings to restrict the audience of their profiles or posts, they are in the clear. However, in the litigation context, courts have, on occasion, required disclosure of a litigant’s social media information despite the user’s seemingly stringent privacy settings. For instance, in one case, the Court allowed discovery of nonpublic portions of a personal injury plaintiff’s Facebook and MySpace pages, given the possibility that her content might challenge her claims of injury.2 The Court quoted a commentator, who stated the following regarding privacy and social networking: “[i]n this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.” This is not to say that attorneys can engage in fishing expeditions for all social media content; requested information must still be relevant to the claim or defense and reasonably calculated to lead to admissible evidence.
  • Thinking Twice before Posting. Posting information on a social media platform about pending or ongoing litigation may jeopardize the lawyer-client privilege, as the user is technically sharing that information with third parties.
  • Preservation of Evidence. When involved in a lawsuit, a litigant may be tempted to delete damaging posts and pictures from social media accounts. However, just as one cannot simply shred relevant paper documents in contemplation of a pending lawsuit, one cannot delete relevant social media evidence, despite the ease of doing so with a single “click” of a mouse.

Technology continues to paint an ever-changing landscape in the civil litigation discovery realm, uncovering both challenges and opportunities for legal practitioners and their clients. Attorneys are wise to educate themselves on rules and court decisions governing social media, and clients should discuss social media issues with their lawyers at the onset of litigation.

See O’Neill v. Oakgrove Constr., Inc., 71 N.Y.2d 521, 532, 523 N.E.2d 277, 282, 528 N.Y.S.2d 1, 6 (1988).

2 Romano v. Steelcase Inc., 907 N.Y.S. 2d 650 (N.Y. Sup. Ct. 2010).