A significant amount of potentially discoverable information now resides on Facebook, Twitter, and LinkedIn among other social media sites. Government lawyers must stay current on issues involving social media discovery.
Do not assume easy access to social media information
Access is not automatic, despite the breadth of discovery permitted under the Federal Civil Rules and many state rules.
Consider potential privacy objections
Be aware of the possible threshold objection that the social media postings are private, i.e., limited to a discrete set of people. But, if the court is provided some evidence that the request will yield relevant information, this argument may fail. The court will attempt to balance the parties’ interests. Some courts have required the requesting party to make a threshold showing that publicly available information on the sites undermines the other party's claims.
Subpoenas to the social media provider will likely fail
While a party can obtain social media information by deposition notice or subpoena from the subscriber, access to the information by a subpoena to the social media provider is off limits because of the restrictions of the Stored Communications Act.