Finding Privacy in a Sea of Social Media and Other E-Discovery

Stuart, Allyson H. | August 1, 2014

This article looks at the case law governing discovery of social media and finds several problems. First, many courts improperly require a threshold showing that relevant information exists in public portions of the user’s social media account before allowing such discovery. Second, courts allow overbroad discovery, often requiring a litigant to turn over his or her username and password to the other party. At the same time, parties seek such information directly from social media sites, attempting an end-run around the relevancy requirement and increasing motion practice. The article argues that, instead, social media discovery should be treated like other party-driven discovery where litigants are entitled to request relevant information that exists on social media accounts and are in turn responsible for providing that information just as they would other discovery in their possession, custody, or control. There is a promising new line of case law following that path. The article then looks more broadly at the emerging issue of privacy in e- discovery and sets forth the existing methods of restricting undue attempts to invade that privacy. Finally, the article argues that the scope of e-discovery dictates a new look at the way our discovery rules protect privacy and finds encouragement in the latest proposed amendments to Federal Rule of Civil Procedure 26(b)(1) to limit the scope of discovery based on proportionality and relevance to existing claims and defenses.