Recent Decision Highlights Competing Approaches to Social Media Discovery

Eric B. Levasseur

In a noteworthy decision highlighting the competing approaches as courts seek to reconcile the explosive growth in social media with traditional discovery principles, a New York appellate court recently found that absent a sufficient “factual predicate” or “reasoned basis” for the discovery, a defendant in a personal injury action was not entitled as a matter of course to discover a plaintiff’s private Facebook postings and messages.  Forman v. Henkin, 22 N.Y.S.3d 178, 2015 N.Y. App. Div. LEXIS 9353, 2015 N.Y. Slip Op. 09350 (1st App. Div. Dec. 17, 2015).  But a dissent challenged the majority holding, questioning whether the majority was placing an additional burden on parties seeking social media discovery that is not part of the “traditional discovery process”; whether it would create an unmanageable burden on trial courts to conduct in camera reviews; and whether invoking the “immutable” stare decisis doctrine was premature in the emerging realm of social media discovery.