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Admissibility of Evidence Obtained From Facebook

By Michael J. Hutter

Facebook is an extremely popular form of social media. (“Social media” as a term is relatively new, dating back only to 2004, and is generally considered to be a defined form of electronic communication.) After registering to use the site, a user can create a profile, post status updates, photos or videos, and exchange messages with other users. These posts will frequently consist of intimate details of their personal lives. Through privacy controls, these posts can be viewed by anyone accessing the user's site, or limited to the user's friends.

As a result of their nature, Facebook posts can be a veritable treasure trove of evidence usable at a trial, civil or criminal. Furthermore, they are accessible. A New York State Bar Association Ethics Opinion provides that it is permissible for an attorney to access an adversary party's public postings (see, NYSBA Opinion 843 (Sept. 2010); and New York courts have increasingly permitted access to a party's private postings upon a proper showing. See, e.g., Forman v. Henkin, 134 A.D.3d 1529 (1st Dept. 2015) (allowing discovery); compare, McCann v. Harleysville Ins. Co. of N.Y., 78 A.D.3d 1524, 1525 (4th Dept. 2010) (denying discovery).

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