Social networking has quickly become a commonplace means of communication by and between Americans. The statistics are impressive. 75% of all adults between 18 and 24 have an online profile. About one-third of all adults engage in some form of online social networking. If Facebook was a nation, it would be the fourth largest in the world. For lawyers and clients, the question has become to what extent is this activity discoverable during civil litigation.
Generally, electronically stored information is discoverable if it is reasonably calculated to lead to admissible evidence. See R. 4:10-2(a); Fed. R. Civ. Pro. 34. The Federal Rules specifically require that the Joint Discovery Plan address “any issues about disclosure or discovery of electronically stored information.” Fed. R. Civ. Pro. 26(f)(3)(C).
Various means of discovery can be utilized to seek such information from an adversary. These include Interrogations; Requests for Admissions; Requests for Production of Documents and Things; and Depositions. Subpoenas can also be used to obtain discovery from third parties such as service providers.
Several courts have recently considered the discoverability of an individual’s social networking activity. Next time we will discuss a couple of these decisions and some the arguments for obtaining and resisting the discovery of social networking activity.