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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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The rules of discovery in U.S. courts are intentionally quite liberal. Generally speaking, parties can "discover" (that is, force the other side or a third party to disclose) any documents or information that are relevant to any claim or defense in the lawsuit. And it doesn't have to be admissible in court to be "relevant"; it only needs to be <a href="http://www.law.cornell.edu/rules/frcp/Rule26.htm">"reasonably calculated" to lead to the discovery of admissible evidence.</a>

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This is one reason why discovery in civil litigation can often be a time-consuming (and therefore expensive) process. Determined lawyers and litigants often leave no stone unturned in their effort to find evidence to support their arguments, no matter how inconvenient or burdensome it may be for the other side to find, collect, and produce the requested information.

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But there are safeguards. If discovery requests are too burdensome, the party receiving the request can seek the court's protection. The court then performs a balancing test, weighing the value of the information to the requestor against the burden on the requestee. If the requesting party can't give a valid explanation of why the information it seeks is "reasonably calculated to lead to the discovery of relevant evidence," courts often call the request a "fishing expedition." In other words, the requestor didn't have a good reason to believe that the requested documents are relevant to the case; they simply threw the request out there like a fishing line, hoping to catch a lucky break.

There have been a lot of litigants taking "fishing expeditions" on social media sites lately. For example, in <a href="http://www.scribd.com/doc/53586051/2011-NY-Caraballo-Denies-Discovery-of-FB-Page-as-Fishing-Expedition">Caraballo v. City of New York</a>, the plaintiff sued for personal injuries he sustained in a construction accident. One of the defendants asked the court to compel the plaintiff to give defendants access to "his current and historical Facebook, MySpace and Twitter pages and accounts, including all deleted pages and related information." Their reasoning was that plaintiff might have made some statement somewhere on those sites that contradicted his injury claims in the case.

The court denied the request, holding that it was overly intrusive, and that defendants had given no reason to believe that such statements existed. Playing on words, the court wrote that "digital 'fishing expeditions' are no less objectionable than their analog antecedents."

Another New York case, <a href="http://www.scribd.com/doc/53586053/2010-NY-Mccann-Denies-Discovery-of-FB-Page-as-Fishing-Expedition">McCann v. Harleysville Insurance Co</a>., was similar. There again, a defendant in a personal injury case sought access to the plaintiff's Facebook page, just in case the plaintiff had said something that contradicted her claims in court. That court also rejected the request as an overly broad "'fishing expedition' into plaintiff's Facebook account based on the mere hope of finding relevant evidence."

The take-away here is primarily for lawyers. Everyone understands by now that social media sites can be treasure troves of information. But because that information is so personal and often so voluminous, we attorneys can't assume that the courts will always let us get it. We need to explain why it's likely to be relevant to the specific claims at issue in the case.

On the other hand, users of social media should not rest secure in the assumption that no one will ever see their "private" posts. The McCann court, for example, left open the possibility that the defendant could come back later with better reasons for why it should get to see the plaintiff's Facebook page. In a later post, I'll discuss some cases that have gone the other way, and allowed discovery of social media sites.

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