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New York courts are increasingly ordering the production of social media posts in discovery, including personal messages and pictures, if they shed light on pending litigation. Nonetheless, courts remain cognizant of privacy concerns, requiring parties seeking social media discovery to avoid broad requests akin to fishing expeditions.

In early 2018, in Forman v. Henkin, the New York State Court of Appeals laid out a two-part test to determine if someone’s social media should be produced: “first consider the nature of the event giving rise to the litigation and the injuries claimed . . . to assess whether relevant material is likely to be found on the Facebook account. Second, balanc[e] the potential utility of the information sought against any specific ‘privacy’ or other concerns raised by the account holder.”

The Court of Appeals left it to lower New York courts to struggle over the level of protection social media should be afforded in discovery. Since this decision, New York courts have begun to flesh out how to apply the Forman test.

In Renaissance Equity Holdings LLC v. Webber, former Bad Girls Club cast member Mercedes Webber, or “Benze Lohan,” was embroiled in a succession suit. Ms. Webber wanted to continue to live in her mother’s rent controlled apartment after the death of her mother. To prevail, Ms. Webber had to show that she had lived at the apartment for a least two years prior to her mother’s death.
Continue Reading Are Facebook Posts Discoverable? Application of the Forman Test in N.Y.