Key Ways Social Media Affects eDiscovery – Part 2

Blurrier Boundaries

In the recent Chace v. Loisel divorce case, the judge sent a Facebook friend request to the plaintiff. On advice of counsel, she declined the request. The judge later issued a divorce ruling that seemed to favor the defendant, and the plaintiff filed an appeal along with a recusal request. The judge refused to recuse herself, although this was overturned in appeals. Social media is definitely increasing the complexities of where personal and professional boundaries should actually fall.

Increased Burdens on Preservation

In Gatto v. United Air Lines, Inc., the plaintiff was accused of deliberate spoliation and deletion of potential evidence when he deactivated his Facebook account. In this personal injury case, Gatto claimed that a work accident had left him permanently disabled, while the defendant stated that photos and other data on Gatto’s Facebook profile indicated he was exaggerating the extent of his injuries. Although the plaintiff in this case was not found to have acted with deliberate intent of spoliation, the alleged evidence nonetheless was destroyed as a result of his actions. In any case involving social media discovery, litigants must remain aware of the increased burden that active litigation places on preservation of data, even down to archived Facebook posts and long-outdated Tweets.

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