Navigating the Marshes Through the Thick Fog of Reasonable Expectations of Privacy & Jurisprudence: Social Media Records Discovery in Louisiana
44 S.U. L. Rev. 292 (2017)
52 Pages Posted: 18 Mar 2017 Last revised: 7 Mar 2018
Date Written: March 13, 2017
The rapid development of social media technology has been both a burden and a gold mine for litigants and judges across the country. Whether attorneys are barred from utilizing impeaching photographs or judges fail to understand the basic concepts of a tweet, the parameters of privacy within the Fourth Amendment in pretrial litigation have been misconstrued and misunderstood. Although most courts generally allow for social media records to be discoverable, the results vary. This occurs because the differences between private and public communications are difficult to identify. Each new feature social media websites release add new challenges to the boundaries of private, public, and quasi-public realms of online privacy. Meanwhile, the liberal thrust of social norms and societal perceptions regarding the different realms of privacy has changed and will continue to change the scope of discovery in Louisiana and across the country.
This note attempts to navigate through the thick fog of reasonable expectations of privacy and jurisprudence to reign in the parameters of social media records discovery in Louisiana. This note begins by analyzing the test for privacy set out in Katz v. United States in the context of social media discovery and its subsequent application in Louisiana. This note also demonstrates how the judicial system and society’s interpretation of reasonable expectations of privacy have evolved alongside technological developments, which in turn have rendered broad legislative acts obsolete and pushed courts to encourage more transparency. Finally, this note attempts to formulate the test for social media discovery requests in Louisiana while offering a solution to discovery disputes.
Keywords: Social media law in Louisiana, Fourth Amendment, constitutional law, civil law, privacy, fishing expeditions, discovery, pre-trial litigation, Facebook, Twitter, Google, YouTube, Instagram, posts, messages, photographs, pictures, tweets, direct messages, communications, comments, evidence
JEL Classification: K10, K13, K14, K19, K20, K23, K29, K30, K39, K40, K41, K42, K49, O30, O31, O33, O39
Suggested Citation: Suggested Citation