Businesses of all sizes maintain social media accounts on Facebook, Twitter, YouTube, LinkedIn and other platforms. According to Social Media Today, 97 percent of all business executives use or have used LinkedIn. Pew Research says that 73 percent of online adults use at least one social networking site and 42 percent use multiple sites. This is not just occasional use. Of the online adults who use Facebook (by far the most popular social network), 63 percent visit the site at least once a day. 

Discovery of social network accounts was sure to follow this explosive growth of social media use, since many people use their accounts as they would have used a journal or diary in the past to record their daily thoughts, feelings and actions. Requests for an opposing party’s social media posts have become almost automatic in employment discrimination and personal injury cases. Courts have often allowed (and even compelled) requests for social media documentation of a party’s emotions and mental state or post-termination employment and financial condition. 

In EEOC v. The Original Honeybaked Ham Co. of Georgia, Inc., 2012 WL 5430974 (D. Colo. Nov. 7, 2012), for example, the defendant employer persuaded the court to compel production of Facebook posts from alleged sexual harassment victims that might show that the alleged harassment was not unwelcome, that the alleged victims’ emotional distress was affected by factors other than the alleged harassment and that the alleged victims had found post-termination employment. In the personal injury context, in Higgins v. Koch Dev. Corp., 2013 WL 3366278 (S.D. Ind. July 5, 2013), the court compelled production of the plaintiffs’ Facebook data to explore the extent of the plaintiffs’ injuries and the effect the injuries had on their lives.

In commercial litigation, discovery of social media accounts has not become an issue as quickly, perhaps because the majority of social networks were developed for personal use and were only later adapted for use in commerce – and perhaps because many companies do not bare their souls on Facebook to the extent individuals do. However, witnesses in commercial cases also memorialize their thoughts on social media, and accordingly, we are increasingly seeing disputes in this area. 

In Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010), a copyright holder filed an action for copyright infringement and breach of contract against a corporation, the owner of the corporation individually, and several of the corporation’s sublicensees. The defendants subpoenaed Facebook and MySpace seeking communications related to the plaintiff’s claims. Although the court quashed the subpoenas as they related to private messages sent through the social networks, it reserved its judgment and ordered that further evidentiary development was necessary regarding the subpoenas’ requests for Facebook wall posts and MySpace comments. In doing so, the court opened the door for future development of discovery requests targeted at corporate social media accounts in future cases.

Say, for example, that a competitor sends one of your executives a message on LinkedIn to offer him or her a position and they discuss the terms of the job offer on LinkedIn before the executive accepts. You would have every reason to seek the LinkedIn communications in discovery, either in a case against the executive for breaching his or her fiduciary duty or non-compete clause or in a tortious interference case against the competitor.

Recent case law demonstrates areas where we will see continued disputes over social media discovery in commercial law. Here are two examples:

• Intellectual Property Infringement and Unfair Competition: Businesses interact with customers, suppliers and a variety of other businesses and individuals on social networks every day and to the extent a business is infringing on your intellectual property rights, discovery of these interactions can provide crucial evidence of the infringement. For example, in Ingrid & Isabel, LLC v. Baby Be Mine, LLC, 2014 WL 1338480 (N.D. Cal. April 1, 2014), the plaintiff held the trademark to a baby product called a Bella Band and the defendant began selling a confusingly similar product called a Belly Band. The court compelled production of all customer comments on the defendant’s Facebook and Twitter accounts regarding the Belly Band as evidence of the trademark infringement.

• Breach of Contract: Discovery of social media posts may be used to pinpoint the details of how a party breached a contract, or what damages the plaintiff incurred as a result. In Charter Practices Int’l, LLC. v. Robb, 2014 WL 273855 (D. Conn. Jan. 23, 2014), a medical management company sued a former franchisee for breach of contract. The franchisee failed to produce Facebook communications relating to a protest the franchisee organized in breach of his contract, and the court compelled production of the posts.

We can expect more court decisions as this area of the law continues to develop.