The 2018 decision by the New York State Court of Appeals in Forman v. Henkin, 30 N.Y.3d 656 (2018), made clear that the principle that discovery “embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise,” equally applies to social media discovery. Since then, courts have become much more sophisticated, as demonstrated below, in how they address social media discovery demands. Such disputes are being “evaluated on a case-by-case basis with due regard for the strong policy supporting open disclosure” balanced against the need for the demands to be “appropriately tailored” and “reasonably calculated to yield relevant information.”

Courts are not tolerating lack of compliance with social media discovery demands, but are critically examining the breadth of the demand in order to permit disclosure of information that is material and necessary to the issues in dispute, providing, as appropriate, for redaction and for in camera review where the social media had not been previously disclosed to non-parties, as well as the time period for which the information is requested.

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