ARTICLE · 29 DECEMBER 2015

Is Discovery Of Private Facebook Postings On Equal Footing With General Discovery Principles?

Sullivan & Worcester

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The mere possibility is not enough.

United StatesLitigation, Mediation & Arbitration

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Are private Facebook postings entitled to more stringent protections from civil discovery? A significant string of New York Appellate Division decisions seemed to suggest that they are.¹ But a divided panel in Forman v. Henkin (2015 NY Slip Op. 09350 [1st Dep't Dec. 17, 2015]), recently insisted that social media discovery is measured by the same standards as other non-privileged information. We are not so sure.

The plaintiff in Forman suffered physical and cognitive injuries as a result of a horseback riding accident. The trial judge directed the injured plaintiff to produce from her recently deactivated Facebook page:

(1) all photographs of plaintiff privately posted on Facebook prior to the accident at issue that she intends to introduce at trial,

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