Electronic Discovery of Social Networking Sites

Joseph Cucco, Albany Government Law Review

Social networking sites, such as Facebook, Twitter, LinkedIn and MySpace, have become immensely popular ways to share information.  Hundreds of millions of people use the sites on a regular basis, uploading photos and other information to their user profiles.[1]  Social networking sites have opened up new ways of staying in touch with friends and family, or letting the world know about one’s likes and dislikes.[2]  They have also raised new legal issues regarding how much of this information is discoverable and what limits should be placed on data acquired from social networking sites.[3]

On social networking sites, members can choose which biographical data to include, decide which of their contacts can see it, and communicate with other users via blog postings, status updates, photo albums, site messaging and chat features.[4]  The sites store this information on their own servers.  The fact that the information is stored remotely rather than on the user’s home computer has led to questions about whether information stored on a third-party server such as Facebook is subject to federal discovery rules.[5]

Lawmakers and courts have scrambled to keep pace with the new technology. The Federal Rules of Civil Procedure were amended in 2006 to impose a duty to disclose “electronically stored information” which a party “may use to support its claims or defenses.”[6]  Rule 34 was amended to include in the definition of “electronically stored information” that is subject to requests for production, “data or data compilations—stored in any medium from which information can be obtained”.[7]  This means that information which users may have thought would stay private is vulnerable to exposure through the discovery process if the user becomes involved in litigation.[8]  As a result, social networking sites have become a fertile resource for litigators gathering information on parties, expert and lay witnesses, potential jurors, and even opposing counsel.[9] Continue reading “Electronic Discovery of Social Networking Sites”