Discovery of Social Media in Litigation
Like it or not social media websites, like Facebook, Twitter, and Instagram, have dramatically changed how people interact with one another. When you would once hear about a friend’s vacation over a cup of coffee or via postcard, you can now see photos of their vacation mere moments after the photo was taken. While many view this revolution in social interaction as a good thing many attorneys and judges have viewed it as a discovery nightmare.
For years courts have grappled with the question of how much of someone’s social media account is subject to discovery. What has resulted is some courts allow broad discovery, some allow narrow discovery, and then many courts fall somewhere in the middle. Predictably, these jurisdictional differences have created much uncertainty in the legal field.
Fortunately, for cases brought in New York State some clarity on this issue has recently been offered by the state’s highest court. In a decisive opinion, titled Forman v. Henkin, the New York State Court of Appeals made a state-wide rule on how courts should deal with discovery questions with respects to people’s private social media accounts.
So what are courts now supposed to do? The answer is surprisingly straight forward, follow the rules as they exist for all other discovery requests. Practically this means information held on a private social media account can be required to be turned over so long as the information “is reasonably calculated to yield information that is material and necessary” to the prosecution or defense of an action.
At the same time, however, the Court made a point to assure that the case’s ruling did not mean a party’s entire Facebook account was automatically discoverable. Instead the Court gave lower courts a two-step process to consider when they are presented with the issue. First, the court should consider the nature of the litigation and the injuries claimed so as to assess whether relevant information is likely to be found on the social media account. Then, if the first part is satisfied, the court should weigh the usefulness of the information sought against specific privacy concerns raised by the account holder. After weighing these considerations the court should tailor its order to allow relevant information to be disclosed while avoiding irrelevant information from being disclosed.
So what does this mean for a party to a case? Simply, be conscious about what you post.