I was reading an article by Christopher J. Akin titled, "How to Discover and Use Social Media-Related Evidence" in the Winter 2011 print issue of Litigation. While the article uses examples from product liability and stock manipulation cases, I can see the relevance of such evidence in patent infringement litigation. The article is not available online at the American Bar Association's website yet and will probably only be available to subscribers. I searched for a similar article and found the above-titled article by Michael C. Lynch and Lystra Batchoo published on May 9, 2011 in The Corporate Counselor. The following is an excerpt:
The Federal Rules of Civil Procedure allow liberal discovery such that "any nonprivileged matter that is relevant to any party's claim or defense" is discoverable. Fed. R. Civ. P. 26(b). Most states have a similarly broad approach to discovery. In the few years in which social media has become a factor for those involved in litigation, it has already dramatically changed the scope of discovery -- and courts are weighing in on when social media content is discoverable. As technology advances, potentially discoverable information that is generated and stored in social media sites must now be considered as part of a litigation strategy.
These developments have significant implications for litigation strategy when defending a lawsuit. Courts are beginning to outline guidelines for when relevant content on social media sites is discoverable. Therefore, attorneys and their clients have to keep in mind the risks and opportunities associated with social media. One important step is to evaluate early on in a case whether relevant information exists on social media sites. This includes researching whether there is information regarding the opposing party that can support its claims or defenses and seeking discovery of such information. Interrogatories, document requests, and other requests for information should be crafted with social media in mind. It is likely going to be the case that the opposing party will object to providing such information and discovery disputes will occur. It is especially important then that the requests for information be carefully made to show that the information sought is relevant and not overbroad or would jeopardize potential privacy concerns.
Read the full article here.