Researching the backgrounds of parties has always been an essential aspect of litigation. Now social media can provide fodder for depositions and settlement strategies.
Individuals (and companies) share a great deal of information that could be useful in litigation. For example, Twitter “tweets” have virtually no privacy protection and can be easily googled, revealing potentially relevant information. Or a search on LinkedIn may reveal a former employee with a noncompete agreement contacting clients via his “new connections.” When this information is not deemed private by the individual, litigators may review and use it to the benefit of their clients.
However, if the postings are deemed private—either by using the privacy settings of the social network or by sending the posting through private messaging—a subpoena issued to the social network is unlikely to produce that information. Under the Stored Communications Act, social networks are prohibited from turning over private postings, messages, or any information not readily available to the public without explicit authorization (and request) from the individual account user. Instead, a party may only get the information from the individual user through traditional discovery methods.
Much has been made of obtaining social media usernames and passwords. Generally, a request for a username and password would allow a party access to a social media account without regard to any user-enacted privacy settings. However, such a request could be considered overly broad since the request itself does not set any boundaries and would allow a party unfettered access to an account. Litigators are better served by limiting a discovery request to a specific period of time and an appropriate subject matter and making such a request directly to the user rather than by poking around in an account themselves.
Zelle Hofmann Voelbel & Mason LLP