Social media use and its information is telling of someone and it is increasingly sought after in court cases where we see social media information used in litigation. Many times social media accounts are a well-spring of vital information that can tip a case on its head. The information can reveal truthfulness or the lack thereof or even a possible smoking gun on liability. Gathered SNS information has at times revealed information discrediting the plaintiff’s damage claims.
While the balance is the pursuit of what is relevant, the predominance of social activity in “SNS” (social network sites) is drawing a need for revisiting discovery rules where social media information used in litigation is raised. The extreme efforts to discover – intrusively – personal information that is only available amid a person’s SNS network is also causing the court to reassess how the rules will address such discovery pursuits; particularly, when a party requests the court to approve the discovery request for passwords and login credentials of the opposing party.
The ultimate question wrestles with what is the inevitable discovery boundary. Absent a third party product that when applied sifts through a SNS account for relevant information, all discovery in SNS depends on the discretion of the information provider vis-à-vis the requester. The latter always deems all posted in SNS by the opposing party as fair game to be discoverable.
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