Social networking websites have become part of the communication mainstream and generate a plethora of personal data. Certain sites allow open access by the public while others, such as Facebook, provide not only public pages, but also private pages with access restricted only to invited individuals. Over the last number of years, these sites have increasingly become a target of discovery demands in personal injury actions, compelling the courts to fashion procedures to determine the extent to which information on private pages must be disclosed. Recognizing that private pages may contain very personal information, the courts began to generate a body of case law, addressing the peculiar and expansive nature of these sites. Many of the decisions fashioned procedures for social media materials that departed somewhat from those applied to more traditional sources of personal information.
The approach to discovery of social media materials was recently addressed by the Court of Appeals in Forman v. Henkin, 30 N.Y.3d 656 (2018). In this decision, the court rejected the existing case law which held that discovery of social media data should be subject to special rules. Instead, the court found that it should be governed by the same principles and procedures as those governing traditional discovery. Significantly however, as with any other discovery request, a demand for private Facebook materials must be narrowly tailored to the facts and issues in the case.
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