In a recent decision, a court in the Southern District of Ohio denied a motion to compel the plaintiff in an employment discrimination action to give the defendants her user names and passwords for each of the social media sites she uses. In Howell v. The Buckeye Ranch, Case No. 2:11-cv-1014 (S. D. Ohio Oct. 1, 2012), the court said “[t]he fact that the information defendants seek is an electronic file as opposed to a file cabinet does not give them the right to rummage through the entire file. The same rules that govern the discovery of information in hard copy documents apply to electronic files.” Applying this reasoning, the court held that the defendants’ discovery request was overbroad because turning over the plaintiff’s user names and passwords would give them access to “all the information in the private sections of her social media accounts—relevant and irrelevant alike.”
Although the court denied the motion to compel, it did find that relevant information in the private section of a social media account is discoverable, and that this information is not privileged or protected from discovery by a common law right of privacy. Moreover, the court stated that the plaintiff had a continuing duty to preserve all the information in her social media accounts and that the plaintiff’s counsel should advise defendants’ counsel if any information in the private sections of the accounts had been deleted since discovery was served.…
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We recently prepared a summary of the top developments and trends in electronic discovery that came out of 2011. Given the evolving nature of this area of the law, understanding the key events from last year can help with this year’s e-discovery challenges. To see what made our list, click here.
Among the highlights:
- "Computer-assisted review" gained traction as a potential way to reduce costs and increase accuracy during document review, resulting this year in the first-known judicial opinion recognizing computer-assisted review as an acceptable method to search for relevant electronically stored information (ESI) during discovery – a development we see playing a key role in how new technology will be leveraged to address budget and timeline concerns going forward.
- Information governance and the need for strong records management policies saw increased discussion last year – a development we see leading to more businesses considering what steps they can take before litigation arises to reduce the volume of potentially discoverable ESI, particularly as new sources of ESI emerge as discovery targets.
- Discovery obligations meet data protection obligations on a global scale – The Sedona Conference® issued a timely and important resource, which we reported on, with an eye toward multinational companies facing a conflict between the requirements of U.S. discovery rules and foreign privacy laws, particularly as the European Commission has proposed a comprehensive reform of the EU’s 1995 data protection rules.
- National civil rule reform is still a ways off from happening, but many federal
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