November 01, 2012

In the latest of a series of annual articles examining cases that address new forms of electronically stored information (ESI) and reviewing recent developments in more traditional forms of ESI, Jenner & Block Partner Timothy J. Chorvat and Litigation Counsel Laura E. Pelanek focus on the “vast reservoirs of information” accumulated by social media sites such as Facebook and Twitter. The authors observe that opposing parties are using statements, photographs, and other materials posted on such sites as evidence.  Noting that courts recently have begun to address the discoverability of social media content, they review prominent cases regarding discovery requests to parties and to social media providers.  Mr. Chorvat and Ms. Pelanek conclude that “recent developments in the law of electronically stored information are noteworthy—principally for the application of existing principles to new technologies, rather than for the creation of novel legal doctrines.  The rule that a party must preserve and produce information within its possession, custody, or control will continue to provide the starting point for a determination of whether data are producible, without regard to what individual or entity owns the machine on which the data reside.”