E-Discovery as a Pre-Trial Determinant of Success

Very few cases ever go to trial in civil litigation, but the discovery process remains essential in case resolution. As a result of ongoing advances in law and technology, electronic discovery has become ubiquitous in legal practice. Even so, e-discovery remains one of the most significant challenges courts face today.

The vast scope of online discovery complicates collecting and exchanging relevant case information. Likewise, the expense involved can be overwhelming. Despite these challenges, pretrial discovery, and e-discovery, along with related motion practice, is frequently the primary determinant of whether a case is successful or not.

Tension Between Social Sharing and Discovery

People freely share information, thoughts, and feelings on social media, which is semi-public by its very nature. At the same time, social media posts often include highly personal information ordinarily viewed as private. This situation has created tension in the law concerning social media e-discovery.

many courts have imposed a “preliminary showing” requirement for discovery requests involving social media collection that does not exist in the federal discovery rules

On the one hand, many courts have imposed a “preliminary showing” requirement for discovery requests involving social media collection that does not exist in the federal discovery rules. This requirement reflects the fact that social media posts shared with a limited number of people do not make such posts automatically discoverable.

However, once the “preliminary showing” requirement has been met, courts often grant broad access to social media discovery requests. These requests often include demanding opposing parties turn over usernames and passwords and provide access to the entire contents of their social media profiles. Such orders often disclose highly personal information that has no bearing on the case at hand, which can arguably be viewed as a violation of an opposing party’s right to privacy.

Hazards of Overly Aggressive E-Discovery Tactics

Litigants sometimes attempt to bypass opposing parties by serving subpoenas for account access and content directly to media platform providers. This problematic approach should be utilized only as a last resort when opposing parties have refused to comply with discovery requests. There is also an excellent argument to be made that such direct solicitation of social media providers constitutes a violation of the Stored Communications Act.

SMI Aware has the expertise to conduct effective e-discovery while remaining compliant and ethical. Our clients trust us to obtain the information to resolve their cases successfully. Let us demonstrate how we can do the same for your firm. Contact us today.

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