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Fawcett v. Altieri: A New York Court Gets Social Media Discovery All Wrong

January 19, 2013 |
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.
The opinion in Gina Fawcett, individually and as parent of John Fawcett, Jr. v. Nicholas and Gerald Altieri and St. Joseph by the Sea High School.
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.
As a side note, see this 2006 Florida Bar Journal article on Electronic Discovery in Florida — a tad outdated after six years, but a good initial primer.
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E-discovery, Facebook

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