Whether You "Like" It or Not: The Inclusion of Social Media Evidence in Sexual Harassment Cases and How Courts Can Effectively Control It

Abstract

The increasing use of social media sites like Facebook, Twitter, and Myspace in social interactions has led to a corresponding increase in the use of social media evidence in litigation. Social media sites provide attorneys with easily accessible, up-to-date information about individuals, making such sites highly desirable sources of evidence. Although recent case law indicates that social media evidence is largely discoverable and often admissible, allowing broad discovery of social media evidence in sexual harassment cases could be highly problematic for plaintiffs because it often produces irrelevant and prejudicial evidence that only serves to embarrass plaintiffs and dissuade them from pursuing otherwise meritorious claims. This Note examines the impact of social media discovery and admission on plaintiffs in sexual harassment cases. It argues that in order to prevent the production of irrelevant and prejudicial social media evidence in sexual harassment cases, courts should apply the principles of Federal Rule of Evidence 412 to the discovery phase and conduct an in camera review of social media evidence before allowing the defense to view it.