Extract from Victoria Hudgins’s article “Plaintiffs Social Media ESI Is Increasingly Discoverable. Will It Chill Meritless Filings?”
As more lawsuits include plaintiffs’ social media electronically stored information (ESI) in discovery, such data is a potential goldmine to support the defense. But as lawyers dig for more of this data, they are also exposed to lingering collection and preservation challenges.
When such data is relevant, defense attorneys regularly request plaintiffs’ social media ESI to refute alleged harms, lawyers said. As the trend to bring this data into litigation grows, it may deter more meritless cases.
In Holley v. Gilead, for example, the U.S. District Court for the Northern District of California ordered plaintiffs attorneys to provide social media ESI for 1,500 plaintiffs. Shook, Hardy & Bacon data and discovery strategies practice group co-chair Patrick Oot, along with his Proskauer Rose and Sidley Austin co-counsel, represents Gilead in the ongoing litigation. Oot, who wasn’t speaking on behalf of the pharmaceutical company, noted that the decision had far-reaching significance, saying it “discourages plaintiffs with claims of marginal merit from filing.”