Discovering Social Media

I am using “discovery” here not in the broad, “never seen it before now” manner, but rather in the narrow, legal framework. And that “discovery” is less exciting. It refers to that portion of civil litigation where one side can find out as much information as possible about the other side’s evidence. The fact is, there are, or at least should be, very few surprises in any civil trial. A good lawyer will have done his homework and have a pretty good idea of what evidence will come into play at the trial. The dirty underbelly of this process, of course, is the potential for abuse – parties can force the other side to produce reams of paper and mountains of electronic data. And this does not even begin to discuss the privacy implications. One of the newer issues in the discovery discussion is the extent to which one side can get social media posts from the other side. Obviously, to the extent the information is public, it’s not an issue. If anyone can see it, that means it is available to your adversary. The tougher question is whether and when the other side can get to postings protected by privacy settings. Here’s a good post from fellow attorney blogger Brian Wassom that gives a summary of the state of the law. The bottom line? Your “private” postings may not be as private as you think. But your adversary’s ability to pry is not unlimited. More to come on this topic, no doubt.