Another court decision on social media evidence discovery

Nicole Black, The Daily Record Newswire

Social media evidence is a hot topic these days, as lawyers are now realizing that there is a wealth of information available online that can be used to prosecute or defend legal claims. As attorneys increasingly seek to obtain access to the social media accounts of litigants, more cases are arising which address the discoverability of this type of evidence.

New York courts are no exception to this trend, and in January, yet another court handed down a decision which addressed a motion to compel the production of social media information.
In Fawcett v. Altieri, 2013 N.Y. Slip Op. 23010, the Richmond County Supreme Court addressed this issue of the discoverability of social media records. In this case, the mother of an infant plaintiff brought a personal injury lawsuit on her son’s behalf against a high school and the parents of another student.

The claims arose from an incident where her son was allegedly injured during an altercation with another student that occurred on school grounds. During the discovery phase of litigation, the defendants brought a motion to compel the production of the infant plaintiff’s social media data.

Prior to addressing the facts of the case on appeal, the court first reviewed the relevant case law and then set forth the appropriate standard: “A survey of cases dealing with the production of social media accounts, in both the criminal and civil contexts, reveal a two prong analysis before courts compel the production of the contents of social media accounts.

This inquiry requires a determination by the court as to whether the content contained on/in a social media account is “material and necessary;” and then a balancing test as to whether the production of this content would result in a violation of the account holder’s privacy rights.”

Next, the court differentiated between public and private social media postings, and elaborated on the necessary showing that a party seeking to compel the records must make: “Information posted in open on social media accounts are freely discoverable and do not require court orders to disclose them ... In order to obtain a closed or private social media account by a court order for the subscriber to execute an authorization for their release, the adversary must show with some credible facts that the adversary subscriber has posted information or photographs that are relevant to the facts of the case at hand.”

Importantly, the court emphasized that overly broad requests were improper, in part because of the nature of the information often shared via social media:  “The courts should not accommodate 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.”

Applying those standards to the case at hand, the court concluded that the defendants had failed to make the necessary showing. “This is a civil tort matter of a minor assault that should have a good faith basis other than supposition, hope or speculation that some comment was made that may be relevant to the case at hand.” the court explained. As such, the court denied the motion to compel, since it was overly broad.

This case, like other recent New York cases, curtails unlimited access to all forms of social media data and treats this type of evidence no differently than other more traditional types of evidence, such as letters, diaries or recordings. Fishing expeditions should be discouraged and all motions to compel information shared privately, whether on social media or otherwise, should have a credible basis.

This decision, which upholds that standard, is further proof that New York’s courts are doing a good job of applying traditional evidentiary concepts to the realities of life in the 21st century.


Nicole Black is VP at, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at


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