The New York State Court of Appeals in a unanimous decision Forman v. Henkin, 2018 NY Slip Op 01015 (N.Y. Ct. App., Feb. 13, 2018) now consistent with federal practice, eliminated the requirement of a requesting party to meet a heightened “factual predicate” for the production of social media designated as “private” under a user’s privacy settings to be ordered in favor of the general rules concerning discovery. The court made it simple, and stated that “there is nothing so novel about [social media] materials that precludes application of New York’s longstanding disclosure rules[.]” However, to be successful on a motion to compel, demands seeking social media will need to have scope and temporal limitations and be carefully drafted to specifically seek information material and necessary to the prosecution or defense of an action.

Indeed, this writer two years ago called into question the dichotomy of such differing standards for social media discovery in a New York Law Journal article he authored titled “Social Media Discovery in Personal Injury Cases: Is Equilibrium Possible?” NYLJ, Feb. 1, 2016 (Vol. 255, No. 20):

Should the procedures regarding the discovery of “private” social media posts in a personal injury action differ from traditional paper discovery? Should the rule not be, as suggested in the dissent in Forman v. Henkin, 2015 Slip Op. 09350 (1st Dep’t Dec. 17, 2015), that as long as the information is relevant and responsive to an appropriate discovery demand, it is discoverable regardless of whether it is a “private” post or whether it would reveal embarrassing information.

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