Daniel Schwartz’s latest entry on social media discovery illustrates how easy it is for parties in a lawsuit to obtain someone’s Facebook records:
No longer are companies required to spent countless hours subpoenaing Facebook for the records of the terminated employee who is suing you. Just ask for the Plaintiff to download all of his or her information and then move to compel if he or she doesn’t.
Facebook now includes a feature that allows a user to obtain and print out all of their historical Facebook activity. The reason this is important is because discovery in many instances is limited by cost and a court’s hesitancy to allow parties in a lawsuit to conduct fishing expeditions. Now both the cost and burden of obtaining this information is minimal. Of course, whether the requesting party is on a fishing expedition will remain an issue.
Other social networking sites allow for some historical information. For instance, Twitter allows individuals in most instances to see a person’s previous entries. The point of this is most of these sites may follow the lead of Facebook and make this type of information easily obtainable.
In the context of non-compete and trade secret cases, Plaintiffs are always trying to reconstruct the departure of the employee. Did the employee print out customer information or trade secrets at midnight the night before they resigned? Or did they simply dump the information onto a zip drive for future use? Any circumstantial evidence that an employer can develop is helpful in reconstructing the time line – social media may have that information or evidence.
