New York courts are refining what is required to be asserted in order for a party to be entitled to the production of social media evidence concerning one’s opposition. Courts often require that the requesting party first depose the witness and ask detailed questions concerning the witness’ use of social media services, such as Facebook; the type and nature of postings made; and the postings themselves as they relate to the events and claims at issue. Courts are requiring that, prior to an initial deposition of an opposing party, counsel must seek to uncover and then review a party’s postings that are available to the public, and counsel must then inquire about such postings at the deposition. Courts are increasingly inclined to permit a follow-up deposition after a timely-filed, tailored demand for documents and authorizations seeking non-public social network postings that would appear to contradict a party’s claims. As for non-public postings, counsel should be aware that ethical rules proscribe an attorney from using “false pretenses” to cause an opposing party to accept counsel as a Facebook “friend,” and thereby gain access to such non-public postings.1 Counsel should be prepared for an in camera review of the social media evidence
Use of electronically stored information (ESI) in dispositive motions has its own unique nuances, and the decisions below address certain of them. Lastly, this article discusses concerns associated with the production of iPhone ESI.2
