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Courts Still Torn Over Whether Facebook Posts Can Be Discoverable
Facebook has been around for more than a decade, but courts are still grappling with how to treat discovery requests for photos and posts from the site.
According to Joshua Stein and J. Alexander Lawrence of Morrison Foerster, the New York State Appellate Division recently came down divided on a discovery request involving Facebook posts in Forman v. Henkin, a personal injury case. The plaintiff said she was injured in a horseback riding accident and her injuries limited her social activities.
At trial, the judge allowed the defendant to obtain all photographs of the plaintiff privately posted on Facebook prior to, and after, the accident (that don’t show nudity or “romantic encounters”), as well as records from the social network with private message history. But appeal, the scope of this discovery was limited and the discovery request was effectively gutted.
Applying the discovery principles of “materiality” and “necessity,” the majority of the court held the defendant didn’t establish the request would produce relevant information. In dissent, Justice David Saxe argued there is an extra procedural burden on the party making the discovery request and then on the courts, when it comes to unearthing private social media matters. He argued parties aren’t normally expected to prove the existence of relevant material before requesting it.
“This case can perhaps best be understood as a lesson in specificity in social media discovery requests,” explain Stein and Lawrence. It “demonstrates that, while the legal standard for discovery may technically be clear, courts are still grappling with the level of procedural protection such information should be afforded.”