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  • New York’s Two Prong Analysis for Production of Social Media

    Fawcett v. Altieri, No. 100008/12, 2013 N.Y. Slip Op. 23010 (N.Y. Sup. Ct. Jan. 11, 2013)

    Last month, we summarized the N.Y. Supreme Court case, Fawcett v. Altieri, which involved the production of electronically stored social media content. What the post did not address, however, was the simple two prong analysis New York courts typically follow before compelling a party to produce the contents of social media accounts. We thought our readers would flood our voicemail and email boxes asking “but what is the two prong test?”  Alas, our readership showed remarkable restraint.  We, however, cannot contain ourselves any longer.  On to the test…

    Citing to cases that have dealt with the production of social media accounts in both the criminal and civil contexts, Judge Maltese held that before courts compel the production of the contents of social media accounts:

    1) the “inquiry requires a determination by the court as to whether the content contained on/in a social media account is ‘material and necessary;’” and

    2) a balancing test must be conducted as to “whether the production of this content would result in a violation of the account holder’s privacy rights.”

    As to the “material and necessary” inquiry, the court stated that “materials posted on a [social media] page would not be shielded from discovery in a civil matter ‘… merely because plaintiff used the service’s privacy settings to restrict access …’ if the material is relevant to the litigation.” However, “[t]here must be a clear factual predicate in order to compel the production of social media records from the defendants or authorizations for the production of that material from certain social media providers.” A clear factual predicate requires a showing that there are “some credible facts” that the social media user has information or photographs that are “relevant to the facts of the case at hand.”

    Courts are then required to determine whether the request for the social media content is simply a “fishing expedition” in search of information that may be relevant to the case or the party has an actual “good faith basis to make the request.”  This balancing test allows courts to prevent “blanket searches for any kind of information or photos to impeach a person’s character, which may be embarrassing, but are irrelevant to the facts of the case at hand.”  As noted by the court, absent facts that the social media user “disclosed some information about the subject matter of the pending law suit, granting carte blanche discovery of every litigant’s social media records is tantamount to a costly, time consuming ‘fishing expedition,’ which the courts ought not condone.”

    Therefore, when requesting social media content from your adversary, litigants should try to obtain as much publically available information/photos from the social media sites before requesting private posts. This may help the party demonstrate that the privately posted information has some relation to the claims stated in the complaint, and that the party is not simply conducting a “fishing expedition” in search of relevant content.

    Although clearly worth the wait, next time don’t be shy.

    If you or your company has any questions or concerns about requesting social media content or any other e-discovery question, contact James G. Ryan at jryan@cullenanddykman.com or Sean R. Gajewski at sgajewski@cullenanddykman.com.