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Protecting Your Clients’ Privacy Rights with Social Media

New York courts have uniformly held that a defendant is not entitled to the blocked content of a plaintiff’s Facebook site by the mere existence of the site itself.

The defendants may not obtain discovery of blocked social media postings absent the existence of some articulable basis for believing that the private content is material and relevant to the plaintiff’s litigation claims, such as information giving rise to the belief that the blocked content “contradicts or conflicts with the plaintiff’s alleged restrictions, disabilities, losses or other claims.” Tapp v. NYS Urban Development, 102 A.D.3d 620 (1st Dep’t 2013).  In the absence of such a factual predicate, the courts will deny the Facebook-related discovery.

Even when a factual predicate exists for the discovery of blocked social media, a defendant will still not be permitted access to a plaintiff’s private postings unless the discovery demand is limited to information that is truly material and relevant to the contested claims of the action. Kregg v. Maldonado, 98 A.D.3d 1289 (4th Dep’t 2012).

For defendants, there will often be no basis for seeking the disclosure or private social media postings during the early phase of a lawsuit.

You should object in writing immediately when served with the pro forma discovery demand seeking disclosure from the plaintiff’s private social media sites. If you do not object within twenty days, you may waive the objection.

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