The defense employment bar is becoming increasingly aware of the potential to uncover valuable information from social networking sites like Facebook, LinkedIn, MySpace, etc., as well as email services such as gmail. An ever increasing number of employees are joining one or more of these networking sites. For example, Facebook, which claimed 250 million “active users” as of July 2009, reached 400 million active users as of February 2010! And they do mean “active.” According to Facebook, “50% of our active users log on to Facebook in any given day” and “People spend over 500 billion minutes per month on Facebook.” Facebook states that the “Average user creates 70 pieces of content each month” and “More than 25 billion pieces of content (web links, news stories, blog posts, notes, photo albums, etc.) shared each month”!

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Obtaining Records From Social Networking Websites.pdf (125.54 kb)

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5/27/2010 4:53:48 AM #

Jim,

The O'Grady case, which you mention in your article, includes the following language:

"[w]here a party to the communication is also a party to the litigation, it would seem within the power of a court to require his consent to disclosure on pain of discovery sanctions."  

We've successfully used this admittedly border-line dictum at the trial court level to obtain such a court order.  There's more discussion on this at CalBizLit, http://tiny.cc/d3q2t.

And DRI members should remember the value of this isn't just in employment cases:  Back when people actually kept diaries and journals, we used to ask for plaintiffs' diaries in many personal injury cases.  Facebook and Twitter are the diaries of the 21st century.

Bruce Nye

6/4/2010 3:17:46 AM #

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