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New Wine in an Old Bottle: The Discoverability of Social Media.

Posted 05/17/17 11:03 PM by Sarah Sawyer

According to the Pew Research Center, 7 out of 10 Americans participate in social media. We share our lives with varying degrees of privacy on platforms like Facebook, Twitter, Instagram, and Snapchat. From sharing personal details such as wedding photos and clips from sporting events on Instagram or Facebook to viewing news from around the world on CNN’s Snapchat, the rise, and popularity of social media are indisputable. However, what happens when an adverse party wants an inside look at your account? As one judge in Pennsylvania succinctly wrote, perhaps the discoverability of social media is “simply new wine in an old bottle.” Brogan v. Rosenn, Jenkins & Greenwald, LLP, No. 08-CV-6048, 2013 WL 1742689, at *6 (Lackawanna Cnty. C.P. Apr. 22, 2013).

Common advice given to job seekers is to make their social media accounts private when they start applying because it’s not uncommon for companies to start with some online research of the applicants it encounters. This strategy is also applicable when a legal case commences. However, unlike job seekers who can keep their social media accounts private from their potential employers; that same right of privacy may not apply to the parties in a legal matter. If you file a personal injury claim and then post a public Facebook status about your rigorous marathon training, you can bet that your opposing party will seek to enter that information into evidence. Moreover, they may use that original post to argue that additional evidence may reside in private posts, or in other social media accounts.

When a party moves to obtain access to a social media account, the court will typically balance an individual’s expectation of privacy with the right of the opposing party to get relevant data. Although there is a debate, most courts do not seem compelled to upset the status quo for the discoverability of ESI. For now, case law appears to rest comfortably on the existing protocol: the burden rests on the requesting party to prove that access may reasonably lead to the discovery of admissible evidence. Romano v. Steelcase, 907 N.Y.S.2d 650, 654 (N.Y. App. Div. 2010).

Does that mean that if you enter into litigation you are inviting the adverse party to expose everything in your social media accounts? Certainly not. While the courts aim to provide access to social media where there is a likelihood of discovering relevant evidence, “fishing expeditions” are typically denied. Just like the mere existence of an email account does not give a moving party the right to obtain its contents, simply having a social media account, coupled with an adverse party’s desire to uncover whether relevant information resides within, is not enough to compel access. Winchell v. Lopiccolo, 38 Misc. 3d 458, 461 (N.Y. Sup. Ct. 2012)

In summary, you should view your social media accounts much like anything else you document electronically; always remember that what may feel private to you may, in fact, be discoverable should you enter into litigation.

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Posted 05/11/17 7:48 PM by Inventus

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Will the use of artificial intelligence replace lawyers?

Posted 04/11/17 10:14 PM by Claudine Schardijn

Legal technology is continuously increasing efficiency and keeping costs down, but will it ever take the place of a lawyer? Artificial intelligence is changing the way lawyers practice law and Artificial Intelligence platforms are affecting how tasks are accomplished.

Not Just the Book, but Its Cover

Posted 03/15/17 4:10 PM by Quan Luc

Typically, the first question that comes up when your client receives a request for production is “what is the scope of the responsive documents to produce, in order to comply with the discovery request?” However, at least in one California court, not only does it matter what you provide in response to a discovery request but in what format you produce ESI.

How do Corporate Legal Departments Control Costs Associated with the Growing Amounts of Retained Data

Posted 03/9/17 8:32 PM by Matt Masterson

As corporate legal departments embark on 2017, the pressure to contain the costs associated with the avalanche of user-created data continues to grow. In-house lawyers have been asking the same question for many years ─ how do we control these costs? 

Alexa, can you keep a secret?

Posted 02/24/17 8:38 PM by Danny Lee

In a day and age where Internet of Things (IoT) devices, such as Amazon’s Echo, are integrated into every aspect of our lives, how much privacy can one expect and can it come back to bite you?

5 Most Famous Cases of Industrial Espionage

Posted 01/26/17 5:12 PM by Attar Mayam

 “Nothing but my curiosity could have prompted to such researches…minute description of all that concerns this kind of work might, somehow, be useful in Europe.”

—Words of Father Francois Xavier d’Entrecolles, as he concluded his account in which he revealed the trade secrets of the makers of Chinese Porcelain, which he acquired while working with the kilns and craftsmen of the industry.

Geeking Out: A Personal Journey to A Career in Technology

Posted 01/19/17 5:38 PM by Andrew Silberberg

In 1999, my father took me to Macworld in San Francisco. Being more of a sports enthusiast and less of the techie type, I reluctantly agreed to the five-hour drive north. Wouldn’t I be completely out of my element? My sports heroes certainly wouldn’t be there. Would other attendees, those who do love technology, be able to spot my outsider status?

Don't Be So Gullible McFly. . .

Posted 12/22/16 2:45 PM by Scott Robinson

So here we are 10+ years out from the initial 2006 amendments to the Federal Rules of Civil Procedure that were enacted to address discovery around ESI. Those ten plus years have been a wild ride wrought with slow adoption, ill-preparedness, and missteps by many, with a select few making the case law headlines.

The Millennial Impact on eDiscovery

Posted 11/30/16 7:10 PM by Trisha Anderson

According to the Census, there are over 83 million millennials in the US, making up over ¼ of the nation’s population. The growth of this demographic has made an inevitable impact on the number of millennials currently in the workforce. By the year 2020, millennials will account for 46% of the workforce.


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