Monday, March 5, 2012

Oversharing: Facebook Discovery and the Unbearable Sameness of Internet Law

Boyden, Bruce E. "Oversharing: Facebook Discovery and the Unbearable Sameness of Internet Law." Arkansas Law Review, Vol. 64, 2012; Marquette Law School Legal Studies Paper No. 12-01, February 27, 2012.

From the abstract: "In the wake of the rise of social networking sites, courts and litigants are struggling to define the limits of civil discovery of such information. Some courts have applied the same rules to social networks that apply to all other documents: relevant materials responsive to a party’s requests must be produced. But a significant number of courts have created an entirely new procedure, applicable only to discovery of social networking materials, by ordering parties receiving such requests to not simply produce responsive documents, but to provide the opposing party with access to their entire account. Indeed, in several cases, courts have ordered the production of a party’s username and password, potentially compromising the security of other sites as well.

These decisions are mistaken. Nothing in the applicable state or federal rules governing discovery requires or even permits a court to order a person to allow another party to obtain documentary evidence directly from the source. Instead, the rules require that person only to produce responsive materials within the scope of discovery." Read more