Understanding Discoverability of Social Media Evidence

Social media has changed how the professional landscape looks. Businesses now advertise on Facebook, Instagram, and LinkedIn. Heads of organizations have social media accounts and post to social media regularly. This has created a vast amount of information that could be relevant to litigation. But standards governing the discovery and admissibility of social media evidence vary widely depending on your venue and jurisdiction.

In federal courts, the standard is straightforward and applied consistently. If the social media evidence one has is relevant, nonprivileged, and proportionate to the needs of the case, then it is discoverable and admissible.

But state courts have different criteria, some of which are more restrictive. For example, New York State courts allow discovery of social media evidence only in those cases in which the information contained in said evidence is shared publicly on the individual’s social media account. However the definition of what information is public may not always be clear. However the definition of what information is public may not always be clear.

When considering the discoverability of private, nonpublic information, it is necessary to find public information that appears in the individual’s social media account that conflicts with or contradicts the individual’s claims. In this instance, the court would allow a review to verify that the content in question is relevant to the case.

Private materials from a social media account can be discoverable and admissible if the information is material and necessary to the scope of the claim

However, courts have allowed access to the photos published in an individual’s private, nonpublic profile. For example, in the case Forman v. Henkin, the court ruled that private materials from a social media account can be discoverable and admissible if the information is material and necessary to the scope of the claim being considered. The determining factor is that the threshold of inquiry is not whether the materials sought are private, but whether they are reasonably calculated to contain information that is relevant to the case.

In addition, the court of appeals outlined the following criteria that must be considered by the court in each case to determine whether the information contained in private profiles should be disclosed:

  • To determine if it is possible to find material from a Facebook account relevant to a case, it is necessary to consider the nature of the event that originated such a case as well as any information related to it.
  • Weigh the relevance of the social media evidence concerning the privacy claims made by the account owner.
  • Establish specific rules for discovering information related to the underlying incident and the type of injuries claimed, respectively.
  • Determine to which extent the social media evidence needs to be revealed and consider the existence of any embarrassing or sensitive data that is not of greater relevance for that matter.

SMI Aware employs proprietary technology along with expert human analysis to process searches efficiently without sacrificing accuracy. We can replicate specific searches and answer questions for all involved parties in a consistent and defensible manner.

With over two-thirds of adults sharing information on social media, there’s a good chance that information relevant to your investigation is available – if you can find it.

Our team of experienced analysts can export and preserve social media and online evidence and provide curated reports ready to use in your investigation. SMI analysts are accredited in social media research to ensure compliance and produce the highest quality search results. Learn more about our process.

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