Discoverability of Social Media Profiles in New York

Articles & Publications

How Defense Litigators Can Optimize on Disclosure

New York State Bar Association Journal
October 2015

For a majority of Americans, social media has become a primary and essential form of communication. Through our smartphones and tablets, we check our social media sites habitually - when we wake up, during our commutes, discreetly in classrooms and offices, at the dinner table, and so on. The light that emanates from our devices is probably the last image burned into our retinas before we fall asleep. Social media has become a permanent fixture in how a large part of our society, for better or worse, communicates.

Approximately two-thirds of Americans, ages 12 and older, have a profile on a social networking site. Of those two-thirds, about 58% have active accounts on Facebook. Approximately 75 million Americans admit to checking their social network profiles multiple times per day. Studies show that the overwhelming majority of U.S. adults ages 49 and younger have a Facebook profile. While Facebook is globally by far the largest social media provider, other niche providers such as Instagram, SnapChat and Twitter maintain large followings of the millennial demographic (ages 35 and younger). Social media is the new norm in communication, and for litigators, specifically those on the defense, it is a valuable discovery tool that must not be ignored.

With the booming popularity of social media and its firm entrenchment in American society, courts nationwide are attempting to balance the admissibility of evidence located exclusively on an individual's social media profile with that individuals right to privacy. Over the last few years, New York courts have adopted a relatively uniform standard to determine how contents within a litigant's social media profile may be discoverable.

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