E-Discovery

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A random Twitter account tags a Japanese company and badmouths it in a series of tweets. Because the tweets are tagged, a search of the company’s name on Twitter will display the tweets with the negative comments among the search results. Upset over the tweets, the Japanese company wants to sue the tweeter in Japan. But how can it? The tweeter has not used his real name.

This is where discovery under 28 U.S.C. § 1782 can help. Section 1782 provides a vehicle for companies or individuals seeking U.S. discovery in aid of foreign litigation—even if the litigation is merely contemplated and not yet commenced. Specifically, Section 1782 provides that a federal district court may grant an applicant the authority to issue subpoenas in the United States to obtain documents or testimony, including documents or testimony seeking to unmask an anonymous Internet poster to pursue defamation claims abroad.

To pursue Section 1782 discovery, an applicant needs to establish:

  • that the requested discovery is for use in an actual or contemplated proceeding in a foreign or international tribunal;
  • that the applicant is an “interested person” in that proceeding; and
  • that the person from whom the discovery is sought resides or is found in the district of the court where the applicant is making the application.

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E-mails. Text messages. Instant messages. Social media. The digital age has given birth to powerful new ways to communicate that have transformed how we live and conduct business. But the proliferation of communication options has come with increased exposure to claims in litigation of withholding, hiding, destroying and losing evidence.

A reminder of the increasing danger of the digital age in discovery recently arose in the New York state attorney general’s investigation of ExxonMobil’s research into the causes and effects of climate change.

After receiving documents from Exxon pursuant to a subpoena, the state attorney general informed a New York court that it had discovered that former Exxon CEO and Chairman Rex Wayne Tillerson had used an alias email address on the Exxon system under the pseudonym “Wayne Tracker” from at least 2008 through 2015.…
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MagManWhile discovery of social media information has been commonplace for some time, courts are still struggling with when such discovery should be allowed. While courts generally hold that normal discovery rules apply to social media discovery, at least one judge has identified—and railed against—emerging trends in such cases that impose additional hurdles for litigants…

iStock_000056895088_FullJudge Richard J. Walsh began his opinion in Largent v. Reed with the following question: “What if the people in your life want to use your Facebook posts against you in a civil lawsuit?” With the explosive growth of social media, judges have had to confront this question more and more frequently. The answer to…

Facebook: Fact or fiction? These days, courts are more and more frequently faced with disputes over whether, as part of the discovery process, a litigant should be entitled to view the opposing party’s social media posts. As we’ve discussed, some courts deciding physical and emotional injury claims have held that the photos and status…

0518SAImageAs social media has become ubiquitous, courts are wrestling with more discovery disputes involving social media accounts.

In a recent case, Crowe v. Marquette Transportation Co. Gulf-Inland, LLC, the plaintiff deactivated his Facebook account in an effort to be able to claim that he was no longer on Facebook. A federal court in…

The latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we summarize the current status of various state laws restricting employer access to the personal social media accounts of applicants and employees; we…

Courts across the United States have now made clear that discovery of social media is fair game. At the same time, courts have consistently found that litigants will not be permitted to engage in social media fishing expeditions; rather, litigants will be required to show that the sites likely contain relevant material. We explore below various approaches taken by courts to address social media-related discovery challenges.

Some courts have simply quashed a litigant’s request for social media-related discovery for failure to show relevance to the dispute. In Kennedy v. Contract Pharmacal Corp., the plaintiff sought a variety of gender discrimination-based damages. The defendants sought to compel broad discovery from the plaintiff’s social media sites. For instance, the defendants broadly requested “[a]ll documents concerning, relating to, reflecting and/or regarding Plaintiff’s utilization of social networking sites.” Denying a motion to compel discovery, the U.S. District Court for the Eastern District of New York held that “[t]here is no specificity to the requests and no effort to limit these requests to any relevant acts alleged in this action.”…
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With the exponential growth in the use of social media by individuals and corporations, civil discovery questions inevitably follow.  Courts and litigants have been left to grapple with questions regarding the discoverability of data on social media sites and the appropriate scope of such discovery.  Although the law will surely evolve in this area, some…