When Doesn't Social Media Discovery Make Sense?

It's hard to imagine a civil litigation case that doesn't involve social media as part of discovery or just general background investigation on the parties involved in the case.

While this article's headline seems to suggest that there is a scenario in which a lawyer may not pursue information available on social media networks, the body of the article proceeds to list several types of cases from business and employment disputes to personal injury that could benefit from social media discovery and investigation:

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.

The remainder of the article briefly touches on methods of obtaining "private" information and a couple courts' response to requests to force people to open up "private" sections.  Apart from listing the numerous types of cases in which social media discovery can and should be used, the article cautions against fighting Facebook and other social media sites about their obligation to comply with subpoenas:

Facebook does not provide user content in response to a civil subpoena on the ground that the Stored Communications Act prohibits it from disclosing the contents of an account to any non-governmental entity.

In other words, it's going to be quite expensive taking on Facebook's policy; especially considering you have standard discovery tools like a request for production and motion to compel to force the other side to produce the information.  Of course, that begs the question - will a court grant such an order?  We'll discuss that in an upcoming post.