Social Media, Personal Lives, and the Limits of Discovery

Many aspects of personal and professional life are conducted online and through social media. As a result, social media posts have become a ripe target for discovery. However, there are limits on the scope and extent of information that courts will allow. In general, courts are more likely to honor specific, targeted discovery requests and reject overly broad discovery demands that give the impression of being fishing expeditions.

Gathering relevant social media data as soon as possible reduces the risk that it will be tampered with, hidden, or removed

For instance, a defendant in a malpractice suit where the plaintiff claims permanent physical disability may be entitled to obtain social media posts that would demonstrate that the plaintiff’s disability predated the medical procedure in question. On the other hand, a defendant’s demands in a negligence case stemming from a car accident for the bulk of a plaintiff’s social media activities – including profiles on dating sites – are likely to be rejected as overly broad and intrusive.

Timing is also of the essence when pursuing social media for discovery. Gathering relevant social media data as soon as possible reduces the risk that it will be tampered with, hidden, or removed. Many law offices make the mistake of waiting until immediately before a deposition to attempt to collect social media. By that time, posts and profiles are often gone – or altered to tell a more favorable story than reality.

Social media can also be a valuable marketing tool and recruiting tool for businesses of all sizes. The potential reach of social media is unlimited, and the platforms are often free. Even paid social media platforms and advertising are usually affordable to small businesses.

However, improper use of social media can lead to extensive adverse legal exposure. For example, companies should have policies and procedures that prevent the use of information from a social media profile to discriminate against potential candidates based on gender, age, race, or other protected class status.

Caveats and potential pitfalls associated with social media should not preclude the use of social media data for business purposes. Instead, companies should establish and maintain consistent policies regarding the collection and use of social media. Companies should also ensure that employees are fully versed on proper procedures to address circumstances such as whistleblowing, cyberbullying, and ownership of social media accounts.

The takeaway lesson in using social media information for both discovery and business is that all information must be collected by ethical and unbiased means. This is by far the most critical aspect of any social media data collection efforts. Hiring a professional like SMI Aware is a smart strategy. A pro can unearth vital details that are often missed by internal investigations and do so in a manner that is both effective and ethical – and the upfront investment often proves to be cost-effective in the long run. 

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