Privacy v. Discovery: An Overview of the Battle for Social Media Information

    July 3, 2012

    What is the proper scope of social media discovery when Internet users have a certain expectation of privacy over  their social media content?  In the article Social Media Crossroads: An Analysis of the Law at the Intersection of Discovery and Privacy in the Realm of Social Media, I explain how federal reach different conclusions of whether social media is discoverable when an Internet user applies privacy settings to shield their information from the general public.

    Despite the popularity of social media sites, published decisions addressing whether the content is discoverable are few and far between. As a result, trial courts must decide these issues without the benefit of established precedent, leading to inconsistent rulings. This makes it difficult for lawyers to predict how a court will react to discovery requests for a party’s personal online information, especially for “private” social media content.

    Accordingly, lawyers and judges find themselves at a crossroads — the intersection of discovery and privacy in the realm of social media discovery — with recent decisions guiding the law in opposite directions.

    Some courts hold that parties lack any reasonable privacy expectation for information published on social media sites, even if a party has hidden the content from the public. Other courts hold that certain social media content is inherently private when it is not accessible to the general public.

    Finally, some courts have taken a different direction, creating unique solutions tailored to specific cases. The judges in these cases attempt to balance discoverability and privacy without attempting to settle the score with binding precedent.Although the law continues to adapt, these cases offer insight for litigants navigating through this uncertain legal territory.

    Over the next several posts, I will analyze (1) The Case for Discovery: reported decisions that determine social media information behind privacy settings are discoverable because users lack a reasonable expectation of privacy, (2) The Case for Privacy: reported decisions that hold that certain information behind privacy settings are protected from discovery under federal law, and (3) Unique Judicial Solutions: where courts have entered orders concerning discovery of social media information that attempts to balance privacy interests with the need to access relevant social media information in litigation.   


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