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Facebook Posts Including Private Message Posts Are Discoverable

In New York State, if you are involved in any type of litigation, including divorce, most documents and communications, including Facebook posts, Twitter, Instagram, and SnapChap are discoverable.  This means, if the opposing attorney makes a request for those documents and communications, you have to produce them in discovery.

The highest New York State Court (what is called the Court of Appeals) has reaffirmed this very basic principle.  The Court stated that the discovery rules are liberal.  In addition, the Court made it clear, that just because the communication, posts or document is in the “private” portion of Facebook or a “private message” does not shield it from normal discovery.  In making its ruling, the Court noted that there is nothing so unique about Facebook that protects the “private” section of Facebook from discovery. 

In other words, just because you label something as “private” or put into a “private” part of Facebook etc., does not make it privileged or shielded from disclosure on the basis of “privacy.”

The Court did note that there are three categories of protected materials: (1) privileged matter (typically attorney-client communications); (2) attorney’s work product (i.e., attorney’s notes and research); and (3) trail preparation materials.

Furthermore, if you want to protect any documents or communications from discovery, you have the burden of showing the document/communication is privileged or has some other right to protection. 

If you are involved in a divorce case, then you should know that anything you post of Facebook or any other social media site can be discovered by your spouse or ex-spouse.  This is why you need to be very careful in what you do post.

David Badanes and the Badanes Law Office, P.C. can guide you and give you the legal advice you need when it comes to Facebook and other social media sites.  If you are seeking a divorce or have been served with divorce papers, then call David Badanes and the Badanes Law Office at 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com.  The Badanes Law Office has offices in Northport (Suffolk County) and in Uniondale (Nassau County).

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