Article 2.pdf - SOCIAL DATA DISCOVERY AND PROPORTIONAL...

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SOCIAL DATA DISCOVER Y AND PROPORTIONAL
PRIVACY
A
GNIESZKA
M
C
P
EAK
*
A
BSTRACT
Social media platforms aggregate large amounts of personal information as
“social data” that can be easily downloaded as a complete archive. Litigants in civil
cases increasingly seek out broad access to social data during the discovery process,
often with few limits on the scope of such discovery. But unfettered access to social
data implicates unique privacy concerns—concerns that should help define the
proper scope of discovery.
The Federal Rules of Civil Procedure, as amended in 2015, already contain the
tools for crafting meaningful limits on intrusive social data discovery. In particular,
the proportionality test under Rule 26 weighs the burdens of discovery against its
benefits, creating important boundaries on discovery’s scope. Privacy burdens
should be part of the proportionality analysis. By considering the privacy
implications of social data discovery, courts can fashion fair and meaningful limits
on the scope of social data discovery.
C
ONTENTS
I. I
NTRODUCTION
.......................................................................................... 59
II. S
OCIAL
D
ATA AND
P
RIVACY
..................................................................... 60
A. Defining Social Data ........................................................................ 60
B. Evolving Notions of Privacy ............................................................. 63
III. C
IVIL
D
ISCOVERY
G
ENERALLY
................................................................. 66
A. Existing Privacy-Based Limits on Civil Discovery .......................... 66
B. Proportionality ................................................................................. 68
IV. S
OCIAL
D
ATA IN
C
IVIL
L
ITIGATION
........................................................... 69
V. A
CHIEVING
P
ROPORTIONAL
P
RIVACY IN
C
IVIL
D
ISCOVERY
...................... 73
VI. C
ONCLUSION
.............................................................................................. 73
I. I
NTRODUCTION
Social media accounts archive vast amounts of personal data and raise unique
privacy concerns. One of these privacy concerns arises in the civil discovery process.
More and more litigants seek social media content in civil litigation and often
request complete and unfettered access to entire accounts. Courts struggle to define
the scope of discovery and often fail to create meaningful limits, resulting in overly
invasive social data discovery with little concern about individual privacy rights.
This essay addresses the privacy implications of overly broad access to big data
in civil discovery, particularly “social data” aggregated in social media accounts. It
argues that courts should set meaningful limits on overly broad social data discovery
using the existing proportionality test under the Federal Rules of Civil Procedure or
state law equivalents. Specifically, courts employing the proportionality test should
*
Assistant Professor of Law, University of Toledo College of Law.
1 Published by [email protected], 2017

60 CLEVELAND STATE LAW REVIEW [Vol. 65:59
weigh the burden on privacy rights against the likely benefits of the proposed
discovery. By including privacy burdens in the proportionality test, courts can
prevent abusive access to highly personal, aggregated social data in civil litigation.
II. S
OCIAL
D
ATA AND
P
RIVACY
A. Defining Social Data
Virtually all aspects of an individual’s online activities create a digital record of
some kind. Often referred to as “Big Data,” these digital records can be archived,
processed, and turned into valuable information.