Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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The Law and Business of Social Media

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Courts across the United States have now made clear that discovery of social media is fair game. At the same time, courts have consistently found that litigants

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U.S. Courts’ Evolving Approaches to Social Media E-Discovery

U.S. Courts’ Evolving Approaches to Social Media E-Discovery | Socially Aware

J. Alexander Lawrence

Courts across the United States have now made clear that discovery of social media is fair game. At the same time, courts have consistently found that litigants will not be permitted to engage in social media fishing expeditions; rather, litigants will be required to show that the sites likely contain relevant material. We explore below various approaches taken by courts to address social media-related discovery challenges.Some courts have simply quashed a litigant’s request for social media-related discovery for failure to show relevance to the dispute. In Kennedy v. Contract Pharmacal Corp., the plaintiff sought a variety of gender discrimination-based damages. The defendants sought to compel broad discovery from the plaintiff’s social media sites. For instance, the defendants broadly requested “[a]ll documents concerning, relating to, reflecting and/or regarding Plaintiff’s utilization of social networking sites.” Denying a motion to compel discovery, the U.S. District Court for the Eastern District of New York held that “[t]here is no specificity to the requests and no effort to limit these requests to any relevant acts alleged in this action.”In Ford v. United States, the U.S. District Court for the District of Maryland <a href="http://static.ow.ly/docs/Angela%20Ford%20v.%20US%20(D.%20Md.%20July%2025,%202013)_1oFr.pdf">rejected</a> the government’s request for broad social media-related discovery. The government had sought “any documents[,] postings, pictures, messages[,] or entries of any kind on social media within the covered period relating to [c]laims by Plaintiffs or their [e]xperts.” The court denied the motion to compel, holding that the government’s request was not narrowly tailored and “does not describe the categories of material sought; rather, it relies on Plaintiffs to determine what might be relevant.”Other courts, when quashing requests for social media-related discovery, have held that the litigants may renew a failed request, if circumstances change. For example, in Root v. Balfour, from Florida’s Second District Court of Appeal, a mother had sued the City of Cape Coral, a construction contractor and a subcontractor for damages suffered by her son who was struck by an oncoming vehicle. The lower court had ordered the mother to produce various types of Facebook postings from both before and after the accident, including any information about counseling or psychological care she obtained; her relationships with her son and other children; and her relationships with other family members, boyfriends and significant others.The appellate court quashed the order, finding that the requested discovery did not survive a relevance inquiry and that even the magistrate acknowledged that “95 percent, or 99 percent of this may not be relevant.” The appellate court, however, held that if further developments in the litigation indicated that such information may be discoverable, the trial court might have to review information in camera and fashion appropriate limits regarding the discovery.Other courts, while not quashing social media-related discovery requests entirely, have severely narrowed the requests before compelling production. For instance, in Mailhoit v. Home Depot, from the Central District of California, the defendant had demanded a wide array of social media-related discovery. These demands included (1) any profiles, postings or messages from social media sites relating to any mental state of the plaintiff; (2) third-party communications to the plaintiff that place her own communications in context; (3) any pictures of the plaintiff; and (4) social networking communications between the plaintiff and current or former Home Depot employees or that in any way refer or pertain to her employment at Home Depot or the lawsuit. The court <a href="http://apps.americanbar.org/litigation/litigationnews/top_stories/docs/Mailhoit.pdf">found</a> the last category to be relevant and quashed the rest on the grounds they were not reasonably particular requests and therefore not likely to lead to discovery of admissible evidence.In certain cases, courts have required the requesting litigant to show some information in the public social media profile that undermines the plaintiff’s claim. In Potts v. Dollar Tree Stores, from the Middle District of Tennessee, the plaintiff sued for race-based employment discrimination, and the defendant requested, among other materials, full access to the plaintiff’s Facebook page. The court found that the required showing had not been made. It concluded that the defendant “lack[ed] any evidentiary showing that Plaintiff’s public Facebook profile contains information that will reasonably lead to discovery of admissible evidence.”We note, however, that at least one court has criticized the approach of looking to the public social media for indications of relevancy of the private portions of the site. In Giachetto v. Patchogue Medford Union Free School District, the U.S. District Court for the Eastern District of New York observed that “[t]his approach can lead to results that are both too broad and too narrow” and went on to analyze category-by-category what the defendant had demanded to determine the scope of the relevant social media information in what the court called a “traditional relevance analysis.”Social media discovery has also sometimes involved the court itself reviewing documents in camera to determine relevancy. For example, in EEOC v. Honeybaked Ham, involving a hostile work environment class-action lawsuit, the U.S. District Court for the District of Colorado <a href="http://scholar.google.com/scholar_case?case=16560158531628156071&hl=en&as_sdt=6&as_vis=1&oi=scholarr">ordered</a> that each class member’s social media content be produced for review by the court in camera to determine what was legally relevant.Similarly, in Offenback v. Bowman, from the Middle District of Pennsylvania, the plaintiff conceded that a limited amount of information in his Facebook account was subject to discovery, but the defendants argued for a much broader scope of discovery from the plaintiff. The court reviewed the information in camera and, siding with the plaintiff, <a href="http://scholar.google.com/scholar_case?case=12227325324526031875&hl=en&as_sdt=6&as_vis=1&oi=scholarr">determined</a> that only a limited amount of information from the Facebook account had to be produced to the defendants.  Social media discovery issues will inevitably arise with even greater frequency in federal and state courts. As the courts struggle through the implications of such discovery issues, litigants should be aware that while social media is generally discoverable, courts are demanding more specificity in requests for social media information as they evaluate relevance.