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”

Twombly Trumps Conley: Ashcroft v. Iqbal and the Quest for a Standard Pleading Standard

Umair Khan, Staff Writer & Robert Magee, Lead Writer

        On December 10, 2008, the Supreme Court heard oral argument in the case of Ashcroft v. Iqbal.1  The case involves a Pakistani Man, Javaid Iqbal.  In the months after September 11th, the Justice Department set out to determine the legal status of every Muslim born man in the New York Metropolitan area.2  Iqbal, a cable repairman, was working in New Jersey when he was brought in for investigation by the Department of Justice on November 2, 2001.  When it was discovered that Iqbal’s immigration status was not current, Iqbal was confined to the Metropolitan Detention Center (MDC) in Brooklyn, New York.3  When he first entered the MDC, he was housed among the general population, but his immigration status, coupled with his Pakistani origin and Islamic faith earned him a “high interest” designation.4  He was thusly confined to a special unit within the MDC, the ADMAX-SHU (“Administrative Maximum Secure Housing Unit”).5  Without ever being afforded a hearing, Iqbal was detained at the MDC for over a year and, he alleges, subjected to horrific verbal, mental and physical abuse, including being left outside during winter without adequate clothing, incessant and unnecessary strip and cavity searches, and starvation.6

        After being allowed to plea to immigration violations, Mr. Iqbal was deported.  Having returned home, though, he has sought legal redress for violations of his Due Process and First, Fourth, Fifth, Sixth, and Eighth Amendment rights under both Bivens7and 42 U.S.C. § 1983 claims, along with numerous statutory violations.8  Significantly, Mr. Iqbal alleges that Attorney General John Ashcroft and other officials at the Department of Justice and FBI approved the “hold and clear” policy which led to his being unconstitutionally detained without a hearing.9  Proving such an allegation is determinative of whether a plaintiff has established a valid § 1983 claim.10

        Unfortunately, in writing his initial complaint, Mr. Iqbal had no smoking gun to prove this.  He had no memo or tape in which Attorney General Ashcroft explicitly authorized officials at the MDC to violate Mr. Iqbal’s rights and it was this lack of a specific allegation that Ashcroft and other defendants moved for dismissal of Iqbal’s claim on the grounds that he, inter alia, hadn’t sufficiently plead a cause of action under FRCP 12(b)(6).11  The Eastern District of New York did not agree, the defendant’s appealed, lost in the Second Circuit12, and went on to win a writ of certiorari to the Supreme Court.

         Continue reading “Twombly Trumps Conley: Ashcroft v. Iqbal and the Quest for a Standard Pleading Standard”