By Sarah Griffis
Recently a clutch of cases tackled discoverability of social media accounts and their contained tweets, comments, posts, and pins. Although this issue has previously been in the courts, two cases decided within a week of each other manage to come to differing conclusions when applying discoverability rules to social media data. Seeing the writing on the wall, attorneys begin to warn their clients about the dangers of sharing too much via social media.
Social media discoverability law is taking some time to solidify in the courts, although cases on the issue have been considered since 2010. EEOC v. Simply Storage Management decided in 2010 that social media content is not “private” enough to avoid discovery. (Lynch , Batchoo) This past June, Thompson v. Autoliv created a challenge method for parties to dispute the overbreadth of information demands. (Fluhr) However, Robinson v. Jones Lang LaSalle Americas, Inc. relied on Simply Storage logic to demand a large swath of communication because it was relevant to the claim or defense. (Lynch , Batchoo) Prior to these decisions, in 2005 Zubulake v. UBS Warburg foreshadowed many of the concerns surrounding electronic communications when it closely considered the discoverability of emails among other forms of electronic communication. (Krause)
Bob Ambrogi recently wrote an article comparing two cases’ approach to the scope of social media discovery. While the facts of the cases were comparable, the difference in decisions illuminates the need for more detailed application of the law.