Social Media and Antitrust: A Discovery Primer

Click here to read the full article online

As our economy has shifted to the online marketplace, so too have the communications that can give rise to antitrust liability. Recent cases suggest that at least some communications evincing unlawful antitrust violations have migrated to social networking sites (SNS), such as Facebook and Snapchat. Indeed, the DOJ recently obtained a guilty plea and a $1.9 million criminal fine from “[a]n e-commerce company and its top executive” for conspiring through SNS and encrypted messaging applications, including Facebook, Skype, and WhatsApp.3 While these communications are generally discoverable,4 preserving and producing (or acquiring) material from SNS can be a difficult and time-consuming process in which there are certain pitfalls (and costs) that attorneys should be mindful of when addressing this type of discovery.