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Discovery Rule Doesn’t Apply to Blogs

August 6, 2010

In the current era we live in of social media, instantaneous news and so forth, people sometimes give less attention and care to something they write online as opposed to a document sent by mail or publish in print.  We have all been guilty of sending e-mails to the incorrect addressee and failing to proofread computer documents and online correspondence.  For those who post blogs or comment on other blogs and articles, there are countless instances of people not taking the time to review everything they post. 

It turns out, however, that in today’s world, blogs are considered more and more like newsprint and mass media.  As such, many of the same laws and limitations applicable to the latter also work with blogs.  In a decision this week by the Eastern District of Pennsylvania, a federal judge dismissed a libel lawsuit against bloggers because it was not filed within the statute of limitations.  The fact that there was an applicable one year statute of limitations for libel actions for this blog was not the issue.  Instead, the decision considered whether the “discovery rule” for the allegedly libelous statements in the blog applied.  The judge decided that the “discovery rule” did not apply, and the limitation ran from when the blog was published, rather than when the plaintiff learned of the blog post. 

So, in other words, 1) watch what you say in blogs because you can just as easily get sued for defamation or other torts and 2) if you do say something potentially defamatory about someone, do it in a blog with a lesser circulation that will not get discovered by that person.

3 Comments leave one →
  1. August 8, 2010 3:33 pm


    I don’t agree with your conclusion, “if you do say something potentially defamatory about someone, do it in a blog with a lesser circulation that will not get discovered by that person.”

    Google has “Google Alerts” where you can have them send you email alerts everytime a particular search word comes up.

    I think the better practice is to make sure the source is reliable and when in doubt, don’t run the article. The big newspaper and media outlets have pressure to be the first to break a story but they have tons of money and lawyers to defend themselves.

    But thanks for all your interesting articles! And where is girlgirl’s articles? I haven’t seen her posts in a while. They were pretty good.

    • September 10, 2010 7:12 am

      LACA, I just happened to log in to comment on John E’s post and saw your comment asking about my articles. Thanks! I’ve been on a hiatus but might come back from time to time to blog when I have the time. 🙂

  2. September 10, 2010 7:10 am

    Hi, John,

    Interesting article. I agree with LA Criminal Attorneys’ post that one make sure the blog is reliable, etc. On a side note, the case you point out is just one of many to come that deal with the discovery rules in connection with the social media evidence.

    In a recent case ( dealing with sexual harassment, where a plaintiff claimed severe emotional distress, a judge allowed discovery of social media content that revealed “emotions.” The allowable discovery was not limited to content that directly mentioned emotions, but also included communication that referred or related to events that normally “produce a significant emotion, feeling or mental state.” That included relevant “verbal communications” (wall posts, status update, comments, groups or causes joined, activity streams, and blog entries), third-party communication, photos, and videos. (To preserve the privacy of the parties, the court issued a protective order limiting the disclosure of the information only to those involved in the lawsuit.)

    The discovery of social media content may also be used in employment situations where an employer suspects an employee is lying, engaging in FMLA abuse, etc.

    So, to make the long post short, everything someone says, posts, IMs, tweets, blogs, or texts may (potentially) be used against him/her.

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