The standard for granting private social media discovery, particularly of Facebook postings, is now well-established in New York, as set forth in the below recent decisions, and such discovery will be permitted when the legal and factual predicate for directing an account holder's authorization is demonstrated through inconsistencies and/or contradictions with the account holder's deposition testimony and/or with his or her public social media postings. However, New York law generally requires that an in camera review for relevance, confidentiality and/or privilege will need to occur prior to a court ordering the production to opposing counsel of a party's private social media postings.

HMS Holdings v. Arendt,¹ a recent commercial division case, explains that, in addition to determining the mens rea of the alleged spoliator, before a spoliation sanction may be granted, in order to determine whether the requested sanction “fits the crime,” courts balance the proportionality of the proposed sanction and will focus on the actual prejudice that the harmed party may suffer in the litigation. Such analysis performed in HMS, after hearing testimony from the parties and computer experts, informed the motion court whether preclusion, an adverse inference, a monetary sanction or the payment of counsel fees is the appropriate spoliation sanction under the specific circumstances.

Facebook Discovery. The First Department in Spearin v. Linmar² reversed an order as “overbroad” which had directed plaintiff to provide an authorization for access to his Facebook account from the date of the accident to the present, and remanded the matter for an in camera review of plaintiff's “post-accident Facebook postings for identification of information relevant to plaintiff's alleged injuries.” The First Department noted: