Psychic Discovery

 http://ow.ly/ashGy

An article by Joshua Gilliland, Esq. on his blog the Bow Tie Law Blog.

This article discusses a situation where a 3rd party provider had electronic communications that belonged to a client.  The matter in question involved a 3rd party that was a psychic services provider, and the plaintiff in the matter had received a request to produce data held by the 3rd party provider.

Ultimately, the plaintiff was required in this matter to produce most of the information on their own, and seek only information that was solely in control of the 3rd party.  The court refused to analyze if the Stored Communications Act would prevent the 3rd party from producing the information, since the plaintiff had access to the information, and could also consent to the production of the requested relevant information as well.

The article states, "I think Judge Maas got this case right on producing ESI highly comparable to social media information. Instead of propounding discovery on third parties with lengthy analysis of the Stored Communication Act, or compelling a producing party to surrender their login credentials to a requesting party, the burden should be on the producing party to review and produce relevant electronically stored information.

Discovery over email does not require passwords and login credentials being surrendered to a requesting party to review email messages at will. Moreover, cases involving the mirror imaging of hard drives do not allow a requesting party to review the entire contents of someone’s digital life. In most situations, the producing party can review for relevance or privilege.

Social media should be no different. Relevancy should not ignored simply because of “friend requests” or Tweets."