Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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New York courts are increasingly ordering the production of social media posts in discovery, including personal messages and pictures, if they shed light on pen

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Are Facebook Posts Discoverable? Application of the Forman Test in N.Y.

Are Facebook Posts Discoverable? Application of the Forman Test in N.Y. | Socially Aware

J. Alexander Lawrence

New York courts are increasingly ordering the production of social media posts in discovery, including personal messages and pictures, if they shed light on pending litigation. Nonetheless, courts remain cognizant of privacy concerns, requiring parties seeking social media discovery to avoid broad requests akin to fishing expeditions.In early 2018, in Forman v. Henkin, the New York State Court of Appeals laid out a two-part test to determine if someone’s social media should be produced: “first consider the nature of the event giving rise to the litigation and the injuries claimed . . . to assess whether relevant material is likely to be found on the Facebook account. Second, balanc[e] the potential utility of the information sought against any specific ‘privacy’ or other concerns raised by the account holder.”The Court of Appeals left it to lower New York courts to struggle over the level of protection social media should be afforded in discovery. Since this decision, New York courts have begun to flesh out how to apply the Forman test.In <a href="https://law.justia.com/cases/new-york/other-courts/2018/2018-ny-slip-op-28241.html">Renaissance Equity Holdings LLC v. Webber</a>, former Bad Girls Club cast member Mercedes Webber, or “Benze Lohan,” was embroiled in a succession suit. Ms. Webber wanted to continue to live in her mother’s rent controlled apartment after the death of her mother. To prevail, Ms. Webber had to show that she had lived at the apartment for a least two years prior to her mother’s death.To determine Ms. Webber’s primary residence, the property company asked her to produce all of her “posts whether in her legal name, Benze Lohan, or any other aliases . . . to social media, including but not limited to Instagram, Twitter, YouTube, and Facebook.”Applying the Forman test, the court found that this request was overbroad for two reasons. First, it did not define a specific timeframe for the post, and, second, it did not list the specific information “sought within these posts on the narrow issue of primary residence.” The court ultimately ordered that Ms. Webber produce all social media posts from the two years prior to her mother’s death that list a location, a comment made by Ms. Webber about a location and any posts in which Ms. Webber mentioned the word home or a synonym for it. The court allowed Ms. Webber to preserve her privacy by directing her to produce redacted posts in most instances. She only had to produce unredacted posts for those in which she used the word home or a similar term.In Israeli v. Rappaport, Deborah Israeli sued her surgeon, David Rappaport, for malpractice after he performed breast implant surgery on Ms. Israeli that resulted in nerve damage and other injuries. She sued claiming that she could no longer lift more than 10-15 pounds and that she had limited range of motion and other lasting permanent injuries. Her husband, Avi Israeli, added a loss of services claim in which he asserted that he had lost Ms. Israeli’s care, affection and companionship. Dr. Rappaport requested access to Ms. Israeli’s “social networking information/photos” from her LinkedIn, Instagram, MySpace, Facebook and Twitter. Dr. Rappaport ultimately narrowed the request to all photographs, videos, posts and private messages between Mr. and Ms. Israeli from one year before the surgery to the present so that he could see if Ms. Israeli’s injuries were permanent and if there really was loss of services to her husband. The court applied the Forman test and further limited the scope of what needed to be produced to videos, pictures and other posts that showed Ms. Israeli’s physical activities particularly as they related to her alleged injuries and interactions between the couple. It also ordered that any pictures, videos, posts or messages that were shared privately between the Israelis or posts the showed romantic encounters or nudity should be produced to the court for in camera inspection to preserve the couple’s privacy.Recently, in Spoljaric v. Savarese, the court considered social media discovery requests in a car accident case. Mr. Spoljaric claimed injuries suffered in the accident impaired his quality of life and ability to enjoy leisure time activities. Ms. Savarese, who was alleged to have caused the accident, sought to disprove Mr. Spoljaric’s claims with some novel discovery requests. First, Ms. Savarese sought all data collected by Mr. Spoljaric’s Fitbit device to show his continued post-accident activity.  Second, she also sought information from Mr. Spoljaric’s accounts with Bumble and Okcupid, popular dating sites. Third, she sought all photographs posted by Mr. Spoljaric to Facebook, Instagram and Twitter. The court rejected the request for the Fitbit data.  While Mr. Spoljaric had lost fifty pounds since the accident, the court noted that the loss of weight was more likely due to diet than exercise. The court also rejected the request for the dating site information. Applying the Forman test, the court found that forcing Mr. Spoljaric to produce information from dating sites would involve too much of an invasion of his personal privacy. The court, however, directed Mr. Spoljaric to provide copies of photographs posted to his Facebook, Instagram and Twitter accounts depicting him in social, recreational or physical activities after the date of the accident.Limiting the requests in both time and subject matter to avoid the appearance of a fishing expedition remains critical. Compare two recent personal injury cases. In <a href="https://law.justia.com/cases/new-york/other-courts/2019/2019-ny-slip-op-33581-u.html">Valentine v. Collins Brothers Moving Corp.</a>, Arthur Valentine was injured in a car accident and sued Collins Brothers Moving Corporation. The court rejected Collins Brothers Moving Corporation’s request to access Mr. Valentine’s social media accounts or direct him to download and disclose the contents of these accounts and to provide duly-executed unrestricted authorizations for all of his social media accounts. Applying the Forman test, the court rejected these blanket demands, which would yield every photograph or communication Mr. Valentine had on any topic prior to and since the car accident.In <a href="https://law.justia.com/cases/new-york/other-courts/2019/2019-ny-slip-op-33581-u.html">Vasquez-Santos v. Mathew</a>, the court considered a much narrower request in a similar accident case. In this case, Genaro Vasquez-Santos, a former semi pro basketball player, complained that he could no longer play ball. The court permitted social media discovery that was appropriately limited in time, i.e., only those items posted or sent after the accident, and in subject matter, i.e., those items discussing or showing Mr. Vasquez-Santos engaging in basketball or other similar physical activities.Other post-Forman social media cases highlight the need to limit requests in time and scope. In <a href="https://law.justia.com/cases/new-york/appellate-division-first-department/2018/6388n-306670-14.html">Doe v. Bronx Preparatory Charter School</a>, the court rejected Bronx Preparatory Charter School’s demand for access to social media accounts of a student for five years prior to her being attacked on campus, noting that the student had provided access to her social media accounts for the two months leading up to the incident. In <a href="https://law.justia.com/cases/new-york/other-courts/2019/2019-ny-slip-op-31535-u.html">Vivona v. Bridgeview Associates LLC</a>, the court considered a case in which James Vivona suffered a head injury when he tripped on a misleveled elevator at Bridgeview Associate’s building. Mr. Vivona claimed to have suffered impaired cognitive functions. Bridgeview Associates found public Facebook photos showing Mr. Vivona playing hockey and sporting a black eye. Bridgeview Associates argued that Mr. Vivona’s impaired cognitive functions could have been caused by the head injuries he suffered while playing hockey and that his social media could uncover more evidence relevant to the actual cause of his cognitive injuries. The court allowed discovery of Mr. Vivona’s social media, but limited it to photographs or other content referencing him engaged in athletic activities.Prior to the Court of Appeals decision in Forman, courts may have felt more uneasy authorizing discovery of social media posts because they had perceived them to be more personal and private than other types of documents. However, as these cases show, post-Forman, New York courts are increasingly willing to allow discovery of personal pictures and private messages if they are reasonably likely to shed light on an aspect of the litigation.Parties seeking such discovery, however, should not go overboard. They need to give thought to what is actually relevant to the dispute. When making the requests, they need to be specific in both time and subject matter. Cast too wide a net, and courts will still push back.