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What is New York’s Discovery Policy for Social Media Information?

In contrast to other jurisdictions, which may choose to focus on the nature of a piece of technology or methodology, New York courts have focused on how appropriate allowing a piece of evidence would be. Within this limitation, New York also has relatively liberal discovery rules, which permit “full disclosure of all matter material and necessary in the prosecution or defense of an action.”

These at times conflicting priorities can be difficult for a court. For a defendant, it can be confusing if you have been accused of a crime and the prosecution wants to see what you previously believed to be your private social media messages. Keep reading to learn more about how New York appellate courts have tried to strike the balance.

If you’ve been charged with a crime, please reach out to a Rockland County criminal defense attorney. We have years of experience in explaining this and other tricky areas of the legal process.

Legislative History of Social Media as Evidence in New York

In 2018, the New York Court of Appeals decided Forman v. Henkin, 30 N.Y.3d 656. Forman held that a legal representative could request and a court could compel a party in a case to disclose private Facebook messages and photos, if the evidence requested is “reasonably calculated to contain evidence material and necessary to the litigation.”

One year later, the court extended that understanding with Vasquez-Santos v. Mathew 168 A.D.3d 587. In Vasquez, the plaintiff was a semi-professional basketball player who lost his ability to continue playing after a motor vehicle accident.

The defendant countered that Vasquez had posted Facebook photos playing basketball, which the plaintiff replied were older photos. The defendant, in turn, requested metadata of the photos, which could contain the date and time the photos had been taken, via the help of a data-mining company.

While the trial court had refused to allow the defendant to request this information, when the case came before the Appellate Division, the decision was unanimously reversed. Instead, the Appellate Division decided to permit discovery of the metadata so long as it was, as the Forman court held, “reasonably calculated to contain evidence material and necessary to the litigation.”

Both Forman and Vasquez-Santos illustrate how New York courts, particularly the Appellate Division, are balancing a liberal discovery policy with reasonable restrictions. However, though we might expect the court to continue a direction it has doubled back on, we cannot know for certain how future case law will treat the use of social media posting and related information.

There are common sense preventions you can take on your own, like never posting anything regarding legal matters in which you are involved. But for personalized advice, particularly on what to do if you’ve already posted about something related to your case, please get in contact with a criminal defense attorney.

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