For Whom the Blog Tolls, Part 1 addressed how blogs are electronically stored information. More importantly, how a blog can be relevant in a case. Part 2 addresses utilizing discovery tools in blog litigation.
Informal Discovery of Blogs
Teenagers sometimes do stupid things. A group of teenagers took photos of themselves “couch surfing” and posted the photos on their blogs. “Couch surfing” requires a truck, a sofa, some line, and a whole lot of stupidity to ride a piece of furniture dragged behind a moving vehicle. Parents checking on their teens’ blogs saw the photographic evidence of a couch being towed at high speed with their sons riding it, complete with flames shooting out from the under the sofa. The teens were grounded accordingly.[i]
Litigators informally searching blogs may unearth statements by parties. Such searches should be standard practice, since the potential to find helpful or harmful information is readily available at little cost. One can make or break a case using such information obtainable online, whether it be the ruminations of a disgruntled employee prior to a lawsuit being filed or the disclosure of dangerous pharmaceutical practices by a virtual whistleblower. You can even proactively determine whether your own client has publicly made any damaging remarks.
Formal Discovery of Blogs
Blog addresses, drafts and contents can be found with traditional discovery tools. Deposing an IT technician regarding blog statements that might conflict with a company’s stated policies could create enough of an appearance of impropriety to sink a business. Special interrogatory requests can identify the existence and address of a blog. Requests for production can compel production of postings, drafts and even information stored in a computer’s memory cache. A well-crafted request for admissions may lead to the revelation of blogs posted under pseudonyms or anonymously. A deposition could highlight inconsistencies between a company’s stated policy and actual practice.
Defendants in libel actions can turn the tables on the plaintiff with their own discovery demands. The plaintiff in Steinbuch v. Cutler was compelled to identify which specific parts of a blog he contended were false and to provide information on what actually happened.[ii] Additionally, a defendant can demand electronically stored information and documents that support a plaintiff’s claim for damages from a blog posting.
Discovery requests for blogs can uncover admissions and damaging statements that individuals would not normally think about in a lawsuit. Human beings are social by nature, and blogs on social networking websites, photo-sharing sites and video diaries empower people to speak their minds publicly. This information can be relevant in a lawsuit and should not be ignored in discovery.
[i] The incident happened in December 2005 with youth and parents the author knows from his volunteer work.
[ii] Steinbuch v. Cutler, 463 F.Supp.2d 4 (D.D.C. 2006)
