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Charm City Lawyer 52 Trial Reporter / Winter 2012

their social networking and online activities. It is impossible to stereotype who among your clients is most likely to be engaged in social networking. Odds are that all of your clients use at least one form of social networking; even the grandmother who is just doing it to keep track of her grandchildren may be a frequent contributor. Ask also if your clients have ever posted a video to the Internet. Clients may not consider YouTube social networking. Ask for permission to look through your clients’ social networking sites. In addition to potential landmines, you may find useful information and/or witnesses to support your claims. From the outset, advise your clients of the dangers of maintaining and participating in social networking sites. Your clients may not realize that “posts” that are seemingly unrelated to their claims may be distorted, misrepresented or otherwise used against them in ways they did not intend and may not have foreseen. Your clients may not realize that they should not post comments about their litigation. Finally, your clients also may not realize that identifying something as “private” on a social networking site is not a guarantee that such content will never be disclosed.

If your clients continue to maintain

their social networking sites during litigation, be sure to check in with them periodically to review the content of their sites. While your client has a personal right in the information

contained in his profile and inbox on a social networking site sufficient to confer standing to move to quash a subpoena seeking such information and some courts have indeed quashed subpoenas,3

networking content over parties’ privacy objections.4

other courts have required disclosure of social Access has

not been unfettered. Courts have denied access to social media content for overly broad requests, or where the requesting party fails to establish the relevancy of the request.5

However, in

deciding what is relevant courts have reasoned that whether social media content is relevant “is more in the eye of the beholder than subject to strict legal demarcations,” and production should not be limited to Plaintiff ’s own determination of what was reasonably calculated to lead to the discovery of admissible evidence.”6 With this in mind, the best way to protect your clients’ interests is to know what is out there. Once you have had the

3 Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 974 (C.D. Cal. 2010). 4 See Romano, 907 N.Y.S.2d at 655-657 (disclosure of social media content was warranted where it was relevant to claims and defenses and where Plaintiff had no legitimate expectation of privacy); EEOC v. Simply Storage Mgmt. Servs., 270 F.R.D. 430, 437 (S.D. Ind. 2010) (finding that privacy concerns could be addressed by appropriate protective orders); Ledbetter v. Wal-Mart Stores, Inc., No. 06-cv-01958-WYD-MJW, 2009 WL 1067018 (D. Col. Apr. 21, 2009) (denying motion for protective order, reasoning that protective order already in place was sufficient to protect plaintiff ’s privacy interests).

5 See McCann v. Harleysville Ins., 910 N.Y.S. 2d 614, 615 (N.Y. App. Div. 2010) (denying as overly broad a motion to compel production of Facebook account contents); see also, Mackelprang v. Fid. Nat’l Title Agcy. Of Nevada, Inc, No. 2:06-cv-00788-JCM-GWF, 2007 WL 119149 at *2, 8 (D. Nev. Jan. 9, 2007) (suggesting that properly limited requests for production of relevant email communications would be more appropriate absent “more than suspicion or speculation” that the communications contained relevant content).

6 Bass v. Miss Porter’s School, No. 3:08cv1807 (JBA), 2009 WL 3724968 (D. Conn. Oct. 27, 2009) (ordering production of Facebook printouts after determining through in camera review that they were relevant).

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