The big budget movies playing right now include the fifth Die Hard movie, the 23rd James Bond movie, the fourth Hobbit-themed movie, and a 3D re-release of 1986’s Top Gun. Clearly, Hollywood has little interest in originality.
Lawyers don’t get much credit for being original or daring thinkers; but in fact, when there is a new area of law, there is frequently a lot of original and interesting work going on.
For example, when there’s a new area of law, like social media discovery, there is initially room for original thinking. Law professors look for a novel interpretation of the law that will get them published in a law review. Judges often sit on public panels with other judges and opine on what the new area of law will mean in litigation. And a few courts will publish the first actual opinions on the matter, often with wildly varying interpretations.
But then things settle down. In the area of social media eDiscovery, there were a few years when courts could not agree on when and how social media could be introduced as evidence.
But slowly, with hundreds of reported cases now setting precedence, the law has begun to settle into a nice, steady rut. In 2012, there was finally wide agreement on the issue and the courts began to produce nothing but sequels.
The Sequel to a Remake of an Adaptation
That’s not to say the law of social media is always predictable. There are always occasionally surprising and unusual cases- like the court that ordered a husband and wife to exchange social media passwords.
But let’s just say that at this point, the way courts will address social media law is becoming predictable. Almost as predictable as saying that Hollywood will inexplicably continue to cast Kate Hudson in dumb romantic comedies, or that the cast of Glee will find a way to ruin a favorite song from your youth.
Here are some recurring themes to watch out for in social media case law:
Social Media’s Definitely Discoverable
Any litigation or matter can include social media evidence. “Although the law regarding the scope of discovery of electronically stored information (“ESI”) is still unsettled, there is no dispute that social media information may be a source of relevant information that is discoverable.” Reid v. Ingerman Smith LLP.
It’s Nothing Special
Mailhoit v. Home Depot U.S.A., Inc. was one of many cases in which the court held that discovery of content from social media sites requires the application of the same discovery principles, such as relevancy and proportionality, used in other areas of eDiscovery. It also requires that document requests describe the information to be produced with “reasonable particularity.”
There are Limits
Requesting parties are not entitled to every piece of information published by an opposing party. In Howell v. The Buckeye Ranch, while the plaintiff had a duty to preserve relevant information in her social media accounts, the court denied a motion to compel the plaintiff to give the defendants her usernames and passwords, saying, “a litigant has no right to serve overbroad discovery requests that seek irrelevant information.”
Similarly, in Tomkins v. Detroit Metropolitan Airport, the court denied a request for access to an entire Facebook account, saying the defendant “did not have a generalized right to rummage at will through information that Plaintiff has limited from public view.”
When in Doubt, Take a Quick Peek
In many cases, courts have settled social media discovery disputes by ordering discovery only after the court or other parties have reviewed data to determine if there is discoverable information to be found. In E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., the court retained a special master to review social media websites used by members.
And in Thompson v. Autoliv ASP, Inc., the court ordered the defendant’s counsel to identify information believed discoverable, allowing plaintiff’s counsel to object to the inclusion of any information.
Careless Use of Social Media Will Get You in Trouble
As the New York Times reported, the National Labor Review Board and other agencies and courts considering workers’ rights have ruled that workers do have a right to use social media. However, in some cases, “it is permissible for employers to act against a lone worker ranting on the Internet.”
That means you can complain about work on social media, but if you insult your boss, you might not be welcomed back next week.
Social media is no longer be a wild or unpredictable area of law. As outlined in the cases above, there are a couple of obvious and predictable trends you can count on in the coming year if social media is involved in a matter.
Derivative, copycat work might not always make for great cinema, but it is a welcome trend in the courtroom, where lawyers need to know exactly how and when they need to consider a given piece of evidence.