Back in October, Facebook came out with a little-discussed feature that allowed users to download their entire content with the click of a button.  Back then, before the legal impact was even considered, I noted that this could have a major impact on discovery issues.

Flash forward six months.  This prediction is becoming a reality.

Indeed, the speakers at a seminar I attended today on using social networking sites in litigation (while at ABA Techshow) highlighted this very feature as a game-changer on the issue of discovery.

No longer are companies required to spent countless hours subpoenaing Facebook for the records of the terminated employee who is suing you. Just ask for the Plaintiff to download all of his or her information and then move to compel if he or she doesn’t.

But beyond that, what today’s seminar emphasized is something that I’ve touched on before — people are leaving behind LOTS of clues as to who they are which leaves them susceptible to discovery.  

And employers (and others involving with litigation) need to find those clues which could become key pieces of evidence.

Courts are allowing this more and more, particularly in employment law cases.  An example discussed today was EEOC v. Simply Storage Mgmt, LLC (download here), decided in New York late last year.  In that case the court said that while the “discovery of SNS (social networking sites) requires the application of basic discovery principles in a novel context,” the issue for the court was  was to “define appropriately broad limits – but limits nevertheless – on the discoverability of social communications…and to do so in a way that provides meaningful direction to the parties.”

The court went out to state that discovery should be allowed of various social networking sites using this definition:

[A]ny profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS applications for claimants…that reveal, refer, or relate to any emotion, feeling or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce significant emotion, feeling or mental state.

For companies that are in the midst of such a litigation, don’t be afraid to use these tools at your disposal. There are limits to this, of course, but ignoring this information may be ignoring a piece of evidence to help defend your company.