Social Data Discovery and Proportional Privacy
17 Pages Posted: 25 Jan 2017
Date Written: January 23, 2017
Social media platforms aggregate large amounts of personal information as “social data” that can be easily downloaded as a complete archive. Litigants in civil cases increasingly seek out broad access to social data during the discovery process, often with few limits on the scope of such discovery. But unfettered access to social data implicates unique privacy concerns — concerns that should help define the proper scope of discovery.
The Federal Rules of Civil Procedure, as amended in 2015, already contain the tools for crafting meaningful limits on intrusive social data discovery. In particular, the proportionality test under Rule 26 weighs the burdens of discovery against its benefits, creating important boundaries on discovery’s scope. Privacy burdens should be part of the proportionality analysis. By considering the privacy implications of social data discovery, courts can fashion fair and meaningful limits on its scope.
Keywords: social media, civil discovery, privacy, social data, Federal Rules of Civil Procedure, proportionality, Facebook
JEL Classification: K10, K19, K30, K39, K40, K41
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