Extract from article by James M. Beck (Drug and Device Law)
We update our cheat sheet devoted to eDiscovery for defendants differently than the others. Because of the broad nature of the topic – these cases arise in a wide variety of non-drug/device contexts – other personal injury, employment, civil rights, occasionally even criminal litigation. That means we have to research them separately to find what we need to include. That is more taxing than our usual routine because it means looking through hundreds of cases to find the ones that are: (1) on point, and (2) favorable to our side of the “v.” Thus, it has been a while since we last updated, but we just did it now. The new opinions are below, and every one of them either allows access to a plaintiff’s social media activity or imposes sanctions (often for spoliation) on the plaintiff for resisting such discovery.
Once again, although we’ve read all the relevant social media discovery cases, we include only the good ones – because we don’t believe in doing the other side’s research for them. A couple of words to the wise arising from the rest are appropriate. First and foremost, if you’re representing a defendant and are considering making a broad request for social media discovery at the very outset of the case – DON’T. Without anything more solid than generalized suspicions as reason for a deep dive into an opponent’s social media, courts are not impressed and are likely to treat it as a “fishing expedition.” Most of the time a blanket social media discovery demand will succeed only when the defendant has caught the plaintiff in a lie – with contradictory public social media evidence − or the plaintiff has attempted to delete or otherwise hide social media activity. The key word is “investigate.” Once the tip of the spear penetrates a plaintiff’s shenanigans, the rest follows more easily.