N.Y. Courts Grapple With Discovery of Social Media Posts

Use of social media tools such as Facebook, MySpace, Twitter, and LinkedIn, as well as many lesser-known or more specialized online media services, has become pervasive throughout every segment of society. For example, in excess of 500 million people around the world are registered with Facebook, and there are over 100 million tweets on Twitter every day.[FOOTNOTE 1]

Social media allows users to post their photos and videos online, and discuss their lives, health, and interests. Indeed, Facebook recognizes that "one of the primary reasons people use Facebook is to share content with others. Examples include when you update your status, upload or take a photo, upload or record a video, share a link, create an event or a group, make a comment, write something on someone's Wall, write a note, or send someone a message."[FOOTNOTE 2] Sharing this personal information can be virtually instantaneous and, of course, worldwide.

That, as might be expected, can lead to a host of litigation issues, including whether information that parties to a lawsuit have made available via social media is discoverable.[FOOTNOTE 3] The recent decision in Romano v. Steelcase Inc.[FOOTNOTE 4] sheds significant light on that issue under New York law.

Analysis of the discoverability of social media content begins with CPLR 3101, which provides for full disclosure of all nonprivileged matter that is both material and necessary to the defense or prosecution of an action. Generally speaking, trial courts have broad discretion when supervising pretrial discovery, including in determining what is "material and necessary."[FOOTNOTE 5]

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Source: Law Technology News
By: Shari Claire Lewis