Tag: privacy

We’ve written before about two different courts considering the discoverability of social media accounts around the same time and coming to different outcomes. And it appears that it has happened again—this time two federal district courts disagree about allowing broad social media discovery in two excessive force cases. In Moore v. Miller, Colorado District Court Judge Kane previously ordered the plaintiff, James Moore, to “produce writings related to his arrest, his tax records, and his employment records,” including writings from various social media accounts. Moore argued that the order was limited to “writings about his arrest.” But the defendant argued, successfully, that “[n]arrowing discovery only to writings about Mr. Moore’s arrest . . . would exclude writings relevant to the arrest such as writings relating to Mr. Moore’s bias, emotional and physical states before and after the arrest and alleged physical and mental injuries.”

Social networking evidence is dynamite, and recent court decisions underscore the difficulty that judges have in deciding whether and how to permit it to be discovered. Facebook pages are part public and part private. Much like one’s home, friends can come in, but strangers need an invitation to get past the front door. Also like a private home, the contents of social networking sites are not exempt from discovery; but neither should opposing counsel get to root around the site, hoping to spy something useful.