A New York court has held that, based on a “survey of social media case,” that there is a two prong test for production of Facebook content which includes developing facts before conducting certain discovery. The court notes that Facebook production is “tantamount to a costly, time consuming fishing expedition…” Moreover, the decision discusses privacy rights in the context of Facebook posts.
Assuming this opinion accurately cites to New York procedural rules, they are markedly different than federal (or Florida) standards.
Some issues with the decision:
The court’s “survey” of social media cases… was three cases. THIS
is a survey of social media cases. Not merely three cases.
That two prong test (supposedly arising from those three cases) prioritizes some forms of discovery over others and turns a blind eye to the wide discovery that’s permitted in business context.
Facebook production is not costly, nor time consuming. It’s free and easy. See the 4 steps here
If there is a case finding Facebook posts to have privacy protections, it’s an outlier. Most cases hold, like the one New York case, that a post is akin to yelling out the window.
Here in Florida, even a private diary is discoverable. Suggesting that there has to be some “predicate” before paper discovery puts a magical wall around social media which a party can construct by downplaying or denying what’s inside.