This post is part of a series titled “Social Media Dos and Don’ts for Lawyers.” Click here to view all the installments.

DO NOT Serve the Providers of Social Media Platforms with Civil Discovery

As a legal matter, many litigators understand that social media records are discoverable. As a practical matter, however, there has been confusion about the best way to obtain the discovery of social media information. In most cases, civil litigators should serve discovery requests for social media information on the users of social media themselves. Attempts to serve third-party subpoenas on providers of social media have been largely ineffective due to the Electronic Communications Privacy Act (ECPA).

Under the ECPA, electronic communication service providers “shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.” 18 U.S.C. § 2702(a)(1). Social media providers have successfully resisted discovery by invoking this statute to quash subpoenas for their customers’ information.

The success of these social media providers appears to hinge largely on the narrow scope of the statute’s exceptions. Specifically, these exceptions allow stored electronic communications to be disclosed by an electronic service provider only if requested by certain individuals or entities. If none of the exceptions apply, litigators should seek the production of social media records directly from the individuals and entities who post the social media rather than pursuing the providers of the social media platforms to avoid wasting time and money.

This post was devised from “SOCIAL MEDIA DOS AND DON’TS FOR LAWYERS,” Business Disputes 2014 Course