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Admissibility of Evidence Obtained From Facebook
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).
Is the information obtained now admissible? Less than 20 years ago, the answer in some courts was “no,” as courts viewed such evidence as consisting of nothing more than “voodoo information.” St. Clair v. Johnny's Oyster & Shrimp, 76 F.Supp.2d 773, 775 (SD Tex. 1999). This conclusion was based upon a fear that such information was inherently unreliable due to the possibility of the creation of false Facebook sites or the posting of false messages by a “hacker.” This restrictive view has given way to recognition that Facebook evidence may be admissible upon a proper foundation.
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