Special Rules for Social Media Discovery?

32 Pages Posted: 15 Aug 2012

See all articles by Steven Gensler

Steven Gensler

University of Oklahoma College of Law

Date Written: 2012

Abstract

Social media have become a part of mainstream discovery practice. Across all case categories, lawyers increasingly understand that social media sites may be key sources for critical evidence. And as lawyers become more aggressive in seeking social media discovery, courts are facing more and more discovery disputes involving social media. This essay considers whether special rules are needed to handle the new phenomenon of social media discovery. I conclude that special rules for social media discovery are neither needed nor likely to be promulgated (at least at the federal level). First, the existing discovery scheme--which operates through functional principles and gives judges flexibility and discretion in how they are to be applied -- is well-equipped to address the issues presented by social media discovery. Questions of scope, privacy, and process all find answers in the existing rules. Second, attempting to write special rules for social media discovery would likely fail to produce rules that provided useful guidance that could stand the test of time. Rulemakers are legitimately reluctant to write rules for the "problems of the day," especially when those problems are tied to technologies that evolve faster than the rulemaking process can act.

Keywords: discovery, social media, civil pretrial

JEL Classification: K41

Suggested Citation

Gensler, Steven, Special Rules for Social Media Discovery? (2012). Arkansas Law Review, Vol. 65, No. 7, 2012, Available at SSRN: https://ssrn.com/abstract=2129877

Steven Gensler (Contact Author)

University of Oklahoma College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States
405.325.7889 (Phone)

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