All posts tagged year in review

2017: The Year of Proportionality

Editor’s note: this article originally appeared in Legaltech News.

Of the many changes that emerged from the 2015 FRCP amendments, none has spurred uncertainty within the legal community as much as Rule 26(b)(1) and its emphasis on proportionality. Judges and counsel alike have wrestled to apply the new rule, leaving 2016 case law rife with complex, fact-based interpretations. Even the Sedona Conference issued a publication addressing this issue in their recent publication, Commentary on Proportionality in Electronic Discovery (with public comments due Jan. 31, 2017). As we head into 2017, one conclusion is certain: Proportionality is here to stay.

What Is Proportionality?

Rule 26(b)(1) provides a list of factors, requiring parties to take into account “the amount in controversy,” “the parties’ resources” and “the importance of the issues at stake in the action,” among other factors. At its core, proportionality is about balance, ensuring that parties receive the information they need to plead their claims and argue their defenses, while curtailing expensive and time-consuming waste. While the concept of proportionality seems simple enough, applying it can be difficult for parties.

One mistake counsel make is to look at the factors involving monetary expenditures and stop their analysis there. However, as the Sedona Conference Publication indicates, this is just the beginning of the analysis. Courts care about the claims at issue, and they still have the same commitment to ensuring that parties will have the relevant information that they need. Relevance still matters, but it no longer stands alone. Courts are now more likely to say “no” to requests that are designed to burden parties and have relatively little value.

Another mistake that counsel make is to tell a judge that a discovery request is not proportional but then offer no suggestion as to how a request can be altered to make it so. If a discovery request is too broad, offer a suggestion as to how it can be narrowed, and be prepared to show the court documentation for costs involved. Where scope of discovery is in dispute, show the court a willingness to cooperate and be in contact with the opposing party when issues arise, rather than filing a motion to compel at the first sign of conflict. In 2017, more Rule 26(b)(1) opinions will have judges admonishing parties for failing to attempt to cooperate with each other. In fact, in the latter part of 2016, judges were increasingly reminding parties that the court is a last resort—not the first—when it comes to managing scope of discovery.

What We Have Learned in 2016

A blanket rule cannot be crafted to determine whether a request is proportional. In many of the Rule 26(b)(1) opinions in 2016, the courts took each specific discovery request and applied proportionality to the facts at hand. While judges might not be able to define proportionality, they recognize it when it is presented to them. When the proportionality analysis is so fact-specific, the job of counsel is to demonstrate to a judge how proportionality can work in the case. In a world buried in data, to be successful in gaining access to the most critical information, counsel must see proportionality as a tool and not a constraint.

In 2017, the expectation will be even higher for counsel to have adopted and be proficient with the new rules. Judges will have less and less patience for those who still apply the old “reasonably-calculated” language of Rule 26(b)(1). While in 2016, some courts themselves were still applying the old standard, in 2017, courts will expect parties to have fully acclimated themselves to the new rule. Courts are getting tired of paring down broad discovery requests and instead are sending the dispute back to the parties with orders to attempt to resolve the issue themselves.

Before the 2015 amendments took effect, the legal community was unsure whether the new emphasis on proportionality meant a material change in ediscovery. The opinions of 2016 have shown that judges have more than wrestled with proportionality; they have embraced it. Gone are the days in which parties can ask for everything and, frankly, strategic litigators know they do not want to be overwhelmed with all that useless data. 2017 will be the year of proportionality, and it is up to counsel to keep pace.

Year in Review: Top Ediscovery Cases of 2015

As another year wraps up, we look forward to the holidays and the promise of a new year. There is no better time to remember the highlights of ediscovery case law in 2015. Duty to preserve, emphasis on proportionality and reasonable form of production dominated this year’s ediscovery judicial opinions as courts prepared for the amendments to the Federal Rules of Civil Procedure to take effect December 1, 2015.

Beyond the domination of preservation, proportionality and production, Kroll Ontrack’s analysis of 55 significant state and federal ediscovery opinions led to the classification of 5 major categories that arose most commonly in 2015 ediscovery case law. These significant cases are summarized in Kroll Ontrack’s guide, Top Ediscovery Cases of 2015. This guide includes the following topics and cases:

35 percent of opinions dealt with disputes over production and the methods used.

  • Webb v. Ethicon Endo-Surgery, 2015 WL 317215 (D. Minn. Jan. 26, 2015)
  • Wilson v. Conair Corp., 2015 WL 1994270 (E.D. Cal. Apr. 30, 2015)

20 percent of opinions focused on preservation and spoliation, including when the duty to preserve is triggered.

  • HM Electronics, Inc. v. R.F. Technologies, Inc., 2015 WL 4714908 (S.D. Cal. Aug. 7, 2015)
  • Fidelity Nat. Ins. Co. v. Captiva Lake Invs., 2015 WL 94560 (E.D. Mo. Jan. 7, 2015)
  • Kan-Di-Ki, LLC v. Suer, 2015 WL 4503210 (Del. Ch. July 22, 2015)

16 percent of opinions addressed cost considerations, such as cost shifting and taxation of costs.

  • Comprehensive Addiction Treatment Ctr. v. Leslea, 2015 WL 638198 (D. Co. Feb. 13, 2015)
  • Colosi v. Jones Lang LaSalle Americas, Inc., 2015 WL 1186765 (6th Cir. Mar. 17, 2015)
  • Hanwha Azdel, Inc. v. C&D Zodiac, Inc., 2015 WL 1417058 (W.D. Va. Mar. 27, 2015)

16 percent of opinions discussed procedural issues, such as search and predictive coding protocols, cooperation and privilege.

  • Rio Tinto PLC v. Vale S.A., 2015 WL 872294 (S.D.N.Y. Mar. 2, 2015)

13 percent of opinions issued orders regarding sanctions for spoliation or failure to produce.

  • Parsi v. Daioleslam, 2015 WL 525146 (D.C. Cir. Feb. 10, 2015)

2014 Ediscovery Trends: Survey Results

With about six weeks remaining in the year, let the “2014 reflections” bombardment begin! You know what I am talking about — the close of the calendar year prompts oodles of nostalgic news stories recalling the biggest events of the year. Okay, I will admit it…about this time last year, I willingly clicked on Google’s Top Ten Trending Stories of 2013 and BuzzFeed’s The 27 Movies We Loved in 2013. There is just something about this time of year that makes us want to ponder the past.

So, wholeheartedly jumping in to the “year in review” spirit, Kroll Ontrack surveyed over 550 law firm and corporate ediscovery professionals to gauge the biggest trends and impacts in ediscovery in 2014. This was a great year for the world of ediscovery, and now is the perfect time to share some of the interesting 2014 trends with all of you. To see the full set of ediscovery trends, please download the “2014 Ediscovery Trends: Industry Survey Results” guide.

Security is a Foremost Concern

The trends show that nearly two-thirds of respondents considered security in some way. While only 8% hired an outside security consultant, 31.5% at least held internal discussions to reaffirm security protocol, and a healthy 22.9% made changes to security infrastructure. However, 37.6% of survey respondents indicated that security had no impact on ediscovery practices in 2014. Big Data has brought big security risks in litigation, and security is likely to become an even bigger issue in the future.

Predictive Coding on the Rise

Big Data is expanding, but technology has allowed tech-savvy litigants to keep pace. In 2014, law firms and corporations emphatically embraced predictive coding, with 40% of law firms and corporations reporting participation in at least one matter that involved the technology. The benefits of predictive coding are clear: it cuts costs and increases efficiency. While the majority of law firms and corporations combined still seem to have avoided predictive coding in 2014, we can expect this number to shrink as more and more litigants turn to reliable predictive coding technology to curb the ever-increasing costs of the ediscovery process.

New Forms of ESI: Social Media, BYOD and IoT

The growth and proliferation of social media and personal devices spawned new collection sources for ediscovery matters in 2014. In fact, over 50 percent of law firms and corporations reported that they were involved in a matter that used social media data. Similarly, 58 percent of survey respondents reported that they had at least one ediscovery matter involving personal devices (BYOD), and 26 percent said BYOD devices played a role in three or more ediscovery matters in 2014.

Further, Internet of Things (IoT) data is likely to be a growing source of new litigation data within the next decade, with 29 percent of respondents preparing for its impact on ediscovery. Thirty-eight percent reported they have made no preparations for IoT and 33 percent have never heard of the IoT.

Looking Ahead

What will 2015 hold for ediscovery? Better visibility into cybersecurity practices? Greater focus on information governance practices? Increased adoption of predictive coding? When asked what ediscovery topic will take center stage in 2015, 26 percent of respondents cited information governance practices, with an equal percentage (26%) noting improved use of analytics to deal with growing demands to preserve and process data.

Ediscovery Year(s) in Review: The Bigger Picture from 2008—2013

If you reviewed Kroll Ontrack’s annual press release, attended our “year in review” webinar, and read our wrap-up about my recent Google+ Hangout with numerous ediscovery experts, you probably have a pretty good handle on ediscovery in 2013.

While there is significant value in knowing the latest trends in ediscovery case law, I’m reminded of one of my favorite law school professors who always stressed that I try to see the forest for the trees. In other words, the cases observed this year are most valuable when taken in context of opinions from years past to discern trends and changes in the rapidly-evolving world of electronic discovery.

Over the past six years, ediscovery has changed a lot, and case law reflects some of those changes. Let’s take a quick look at some of the trends from 2008 to present:

  • Sanction disputes remain (relatively) constant as preservation and spoliation standards remain in flux – from 2008 to 2013, opinions about sanctions have, on average, accounted for over 20 percent of the cases summarized by Kroll Ontrack. Cases discussing preservation and spoliation—the two topics most frequently related to sanctions—have seen a significant jump over the past two years. These are tricky subjects, and numerous courts—most recently and notably in Sekisui Am. Corp. v. Hart—tend to apply standards that vary by the facts of the case and the judge. As courts continue to interpret common law and apply varied analyses with regard to preservation, spoliation, and sanctions, this number will likely remain somewhat constant. Although the proposed amendments to the Federal Rules of Civil Procedure aim to provide more clarity with regard to spoliation, public support for this change is anything but uniform and we could still be years away from actually amending the Rules.
  • Cases discussing production have tailed off – the number of cases focusing on production disputes peaked in 2009, where the topic accounted for 41 percent of Kroll Ontrack’s case summaries. Since then, that number has declined fairly steadily, with a slight uptick in 2013. The heavy number of production disputes from five years ago likely stemmed the rising challenges producing additional mediums in big data. The post-2009 decline was likely a product of savvier practitioners and judges meeting those challenges head-on.
  • Procedural Disputes expand – opinions focusing on search methodologies saw the most notable increase in 2012, where they accounted for a larger majority of the cases summarized. As new technologies like predictive coding rose to prominence in 2012, the courts showed a heightened interest in the finer details of search methodologies to determine whether they were reasonable. In 2013, many of these questions were resolved under the framework of a proportionality analysis, which might prove more popular as proposed amendments make greater reference to this bedrock discovery principle.
  • Cost Concerns rise and stay steady – cases discussing ediscovery costs truly rose to prominence in 2010, and cases such as Race Tires Am., Inc. v. Hoosier Racing Tire Corp. typified one side of the lingering debate about which costs related to ediscovery were recoverable. While courts remain relatively split over whether ediscovery is the modern equivalent of “exemplification” or “making copies” under 28 U.S.C. § 1920 (4), this subject will likely receive greater attention from the judiciary as litigants try to make sense of the existing standards. In fact, many peers in my recent Google+ Hangout believe this topic should receive greater attention as the existing channels to recover costs are far too limited.

As we look ahead to the future of ediscovery, understanding where we are and where we’re going is tremendously important to successfully navigating the pitfalls of unstructured data, rising litigation costs, and a litany of other concerns unique to this field of practice. If you’re still looking for more “year in review” content with some forward-looking discussion, be sure to catch my most recent ESI report podcast featuring Phil Favro.

2013 Case Law: “Back to Basics” Approach Gave Us Something to Chew On

2013 for ediscovery “was a very good year.” The courts’ unified message was simple (showing a renewed interest proportionality and cooperation), clear (attorneys in 2013 must know ediscovery), and even a bit provocative (see Sekisui). Considering that a bold and active judiciary is absolutely necessary to bring these elusive principles to life, I’m not even mad that the judiciary may have been listening to Ol’ Blue Eyes before Thanksgiving.

Attorneys are finally realizing that palpable value lies in fostering cooperation and proportionality by chasing carrots like reduced motion practice and less “discovery about discovery.” At the very same time, however, we’ve seen courts return to tried and true sticks like 26(g) as a vehicle for sanctions, all while making sense of the spoliation rulemaking quagmire playing out at the federal level.

Overall, Kroll Ontrack summarized more than sixty significant ediscovery opinions. Here are the topics those opinions focused on, by percentage:

  • 28% of case revolved around Preservation and Spoliation of ESI, including when the duty to preserve is triggered
  • 23% of cases had to do with Production of ESI for discovery disputes and the methods used
  • 18% of cases address Sanctions for spoliation, production disputes and noncompliance with court orders
  • 18% looked at Procedural Issues such as search protocols, cooperation and privilege
  • 13% dealt with Costs such as shifting and taxation of costs

Notable ediscovery opinions from 2013 will prove most important as efforts to amend the Federal Rules of Civil Procedure progress through 2014. Many of these cases provided standards that either aligned with the proposed rules or further fueled the debate over the proposed language to key amendments.

For a deep dive in the 2013 in ediscovery, check out Kroll Ontrack’s annual press release and check back at this site to watch our recorded webinar.

Should Old Acquaintance be Forgot…

Ediscovery Trends for 2013

… and …wait, how does the rest of that song go?

New Year’s is deeply rooted in tradition, and one of the most tried and true traditions is making resolutions. Like the New Year’s resolutions you’re planning, 2013 will be all about change for ediscovery. Here are some ediscovery trends and topics we’re likely to hear about in the coming year:

Fine-tuning the most appropriate instances and best practices for technology-assisted review (TAR)

Following the Da Silva opinion, numerous courts issued opinions approving TAR, such as Global Aerospace v. Landow Aviation in Virginia, and In re Actos (Pioglitazone) Products Liability Litigation in the Western District of Louisiana.  Like Da Silva, both of these opinions approved TAR due to detailed procedures that ensured defensible results. Additionally, TAR opinions were not limited to cases where it was proposed by one of the parties, as the Delaware Court of Chancery recently ordered sua sponte that both parties leverage TAR and share a vendor for an indemnity suit in EORHB v. HOA Holdings, LLC. In 2013, expect the number of opinions discussing TAR and related issues to increase significantly.

Social Media discoverability: how much is too much?

Notably, courts diverged on the discoverability social media data. Several opinions, such as Original Honeybaked Ham Co. of Georgia, Inc., allotted broad discovery of such data, likening it to an “everything about me folder.” Other courts, however, applied a narrower standard, finding that the Federal Rules do not grant a “generalized right to rummage at will through information [a person] has limited from public view.” As we head into 2013, practices and laws regarding social media will remain in a constant state of change.

Continued buzz regarding ediscovery cost allocation

When it comes to which party pays for ediscovery costs, courts across the country have yet to settle on a standard. Ediscovery cost allocation remains ripe for consideration by the Advisory Committee on Civil Rules, who will likely evaluate amendments to the Federal Rules of Civil Procedure in the near future.

Above all else in 2013, continue to gain proficiency in applicable technology solutions and evolving case law. Although the technology and practices might change, conducting ediscovery efficiently and defensibly will never go out of style in the eyes of the judiciary.

Technology Assisted Review: Ask and You Shall Receive

Technology-Assisted Review - Ask and you Shall Receive

Whether it’s a tablet or a smartphone, the latest and greatest technologies are the hottest items on everyone’s 2012 wish list. Like the modern consumer, tech-savvy litigants have long been deliberating the best opportunity to leverage technology-assisted review, or TAR, and other advanced searching technologies with predictive algorithms. Since Da Silva Moore v. Publicis Groupe condoned the use of this technology, practitioners are starting to leverage it.

On the whole, advancing technology and growing data volumes had a profound effect on the ediscovery issues that courts discussed in 2012.

The judiciary devoted significant attention to discovery protocols in 2012.

The increased level of procedural scrutiny was best on display in Da Silva Moore. Specifically, U.S. Magistrate Judge Andrew Peck and U.S. District Court Judge Andrew Carter noted that their primary concern was the defensibility of the method implemented, rather than the “black box” behind the technology. Peck closed by emphasizing that “counsel must design an appropriate process,” leveraging available technologies and appropriate quality control testing.

Many sanctions in 2012 stemmed from counsel trying to keep pace with the “big data” era.

The total number of cases addressing sanctions dropped approximately 10 percent in 2012, but it was still the most discussed topic. For example, in Coquina Invs. v. Rothstein, over 200 defense attorneys collecting, reviewing and producing ESI constituted “a case of too many cooks spoiling the broth” amounting to insufficient production, a finding of gross negligence, and sanctions in the form of attorney’s fees and costs. Coquina and similar cases, should serve as cautionary tales displaying the importance of understanding a client’s data before attempting to preserve or collect it.

Courts were all over the map regarding appropriate ediscovery preservation standards in “big data”.

In Chin v. Port Auth. of New York & New Jersey, for example, the court diverged from the Zubulake standard, finding that counsel’s failure to institute a litigation hold did not constitute negligence per se. Instead, the court in Chin favored a case-by-case, factor-based approach to determine whether spoliation occurred. However, many opinions stuck with the Zubulake standard, such as Voom Holdings LLC v. Echostar Satellite LLC, in which the court found the defendant’s failure to issue a litigation hold to suspend deletion of e-mails constituted gross negligence and warranted severe sanctions. As data volumes continue to proliferate, expect courts to evolve their litigation hold procedures for years to come.

So what’s up next for ediscovery? Will technology-assisted review go mainstream? Will “big data” continue to cause big headaches for practitioners? Find out tomorrow as we conclude our three-part series with a look toward 2013’s hottest topics

Read part three of our year in review series.

‘Tis the Season to Look Back: Ediscovery in 2012

Ediscovery in 2012

It’s that time again: The election is over, coma-inducing amounts of tryptophan were consumed, and families everywhere are breaking out hideous festive sweaters to show their holiday spirit .That can only mean one thing: 2012 is nearing its end—and it’s time to look back on the year that was ediscovery!

Major Ediscovery Case Law Trends Emerge

From January 1 to November 30, 2012, Kroll Ontrack summarized and categorized 70 of the most significant state and federal judicial opinions related to the preservation, collection, review and production of ESI. Major cases in 2012 discussed:

  • Sanctions (32%) for spoliation, production disputes and noncompliance with court orders
  • Procedural Issues (29%) such as search protocols, cooperation, production and privilege
  • Discoverability and Admissibility (16%) of specific types of information, such as corporate email stores and social media data
  • Cost considerations (14%) such as shifting and taxation of costs
  • Technology-Assisted Review (TAR) (9%), predictive technologies and other advanced search technologies

Several notable trends emerged from 2012 that will leave a lasting impression on the ediscovery landscape. However, all good things come to those who wait, so tune in tomorrow for part two of our three part series, where we’ll analyze these trends.

Read part two of our “year in review” report now.

2010: A Year in Review


Minneapolis, MN – Dec. 7, 2010 Kroll Ontrack, the leading provider of information management, data recovery, and legal technologies products and services, today announced its analysis of the reported electronic discovery opinions and five notable discovery themes in 2010. Among the dominant topics reoccurring in the 2010 judicial opinions were the pervasive struggle companies and practitioners continue to have with proper preservation techniques, the continued growth in intolerance by the judiciary for discovery failures and the renewed call for cooperation amongst counsel.

From Jan. 1, 2010 to Oct. 31, 2010, Kroll Ontrack summarized 84 of the most significant ediscovery cases. The number of discovery-related opinions continues to increase exponentially. These 84 opinions represent the trends demonstrated in jurisdictions across the nation. The breakdown of the major issues involved in these cases is as follows:

  • 39 percent of cases addressed sanctions
    • 49 percent of sanctions involved preservation and spoliation issues
    • 27 percent of sanctions involved production disputes
    • 24 percent of sanctions involved withholding discovery and other abuses
  • 18 percent of cases addressed various production considerations
  • 17 percent of cases addressed various procedural issues (such as searching protocol and cooperation)
  • 11 percent of cases addressed privilege considerations and waivers
  • 8 percent of cases addressed computer forensics protocols and experts
  • 2 percent of cases addressed cost considerations
  • 2 percent of cases addressed preservation and spoliation issues (but not sanctions)
  • 2 percent of cases addressed discoverability and admissibility issues

Almost every case that discussed preservation and spoliation issues also included a conversation regarding sanctions. This is not surprising given that 24 percent of respondents to the Fourth Annual ESI Trends Report published by Kroll Ontrack ranked preservation and collection difficulties as their number one concern.

Similar to both 2008 and 2009, the dominant pain point for courts and counsel was sanctions. Of the 33 sanctions cases summarized, 23 opinions (70 percent) awarded sanctions, while only 10 opinions (30 percent) denied sanctions.

“Information management and discovery protocols and processes are far from clear for most organizations. The lack of defined rules leaves organizations relying on case law, which can be contradictory depending on the jurisdiction,” said Michele Lange, director of discovery, Kroll Ontrack. “Consequently, organizations should not underestimate the value of conducting proactive measures with a discovery expert – from creating and communicating clear policies to testing those policies – so they are in the best possible position when required to respond to a request for ESI from a government agency or opposing party in a lawsuit, regulatory matter or investigation.”

Five notable cases themes from 2010 included:

Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010). Seven plaintiffs who eventually issued written holds were found to have acted negligently, while the six plaintiffs who failed to issue any written litigation hold were found grossly negligent and subject to a permissive adverse inference sanction. The court found all thirteen plaintiffs worthy of monetary sanctions since they “conducted discovery in an ignorant and indifferent fashion,” and awarded the defendants reasonable attorneys’ fees and costs associated with the motion.


Rimkus Consulting Group, Inc. v. Cammarata, 2010 WL 645253 (S.D.Tex. Feb. 19, 2010). Court noted that “spoliation of evidence – particularly of electronically stored information – has assumed a level of importance in litigation that raises grave concerns” and “distract[s] from the merits of a case, add[s] costs to discovery, and delay[s] resolution.” Imposed a permissive adverse inference instruction and awarded the plaintiff attorneys’ fees and costs. Distinguished Pension Committee, finding the differences between circuits in relation to culpability of parties limited the applicability of the approach taken in that case and identified an additional distinction in regard to the burden of proof in relation to relevance and prejudice of spoliated evidence.

Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 WL 3703696 (D. Md. Sept. 9, 2010). Court remarked the eight discrete preservation failures of the defendant “collectively constitute the single most egregious example of spoliation [that he has] encountered in any case . . . in nearly fourteen years on the bench.” Discussed preservation standards and spoliation laws among the Circuits, including in Pension Committee and Rimkus Consulting Group and issued a default judgment for one claim and held that the defendant president pervasively and willfully violated court orders in civil contempt of court, ordering him to be imprisoned for up to two years, or until he paid the attorneys’ fees and costs – estimated to be a “significant amount.”

Camesi v. Univ. of Pittsburgh Med. Ctr., 2010 WL 2104639 (W.D.Pa. May 24, 2010). Court ordered the parties to meet and confer and issued the defendants a “wake-up call” to “tighten up their discovery practices.” Court emphatically directed opposing counsel to act reasonably and in good-faith, working through “disagreements amicably whenever possible” as the court “has neither the time nor the resources to resolve every discovery agreement that surfaces in this or any other case.”

Privacy in the Workplace
City of Ontario, California v. Quon, 2010 WL 2400087 (U.S. June 17, 2010). United States Supreme Court declined to issue a “broad holding concerning employees’ privacy expectations vis-á-vis employer provided technological equipment.” However, the court found the employee should have understood or anticipated that it might be necessary for the City to audit the pager messages and deemed the employer’s search of the employee’s text messages reasonable.

Mt. Hawley Ins. Co. v. Felman Prod., Inc., 2010 WL 1990555 (S.D.W.Va. May 18, 2010). Despite citing numerous steps the plaintiff undertook to prevent disclosure and the existence of a clawback agreement, the court found the plaintiff failed to perform critical quality control sampling and concluded the plaintiff did not take reasonable steps to prevent disclosure. As such, the efforts did not satisfy Fed.R.Evid. 502(b) and privilege was waived. In making its decision, the court also noted the e-mail was “a bell which cannot be unrung,” which influenced the defendants’ discovery requests and deposition questions. 

Discoverability of Additional Mediums
Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (Sept. 21, 2010). Court found public portions of the plaintiff’s social networking sites contained content that was material and necessary to the litigation, and discerned a reasonable likelihood that the same would hold true as to the private portions. Noting commentary that “privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking,” and that sharing personal information with others “is the very nature and purpose” of social networking sites the court ordered the plaintiff to provide necessary authorization for access to private Facebook and MySpace accounts.