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William C. Altreuter
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Thursday, May 31, 2012

Interesting discussion about discovery of social media at the Western New York Trial Lawyers Association today. At this point Googling and Facebook stalking parties is pretty routine, and I think the barn door is closing on defense counsel's ability to find worthwhile material on social media sites-- but it isn't closed yet. One issue out there is the timing of disclosure. Ordinarily party statements are to be disclosed upon demand in New York practice, and this is a continuing obligation. (In federal practice you are expected to give it up pursuant to Rule 26-- no need to wait for somebody to ask.) One of the presenters took the position that if one is merely viewing the material on line, rather than printing a hard copy,  that it need not be disclosed. I'm inclined to disagree. The Court of Appeals seems to be trending in the direction of saying that the presence of material in a computer cache is proof of viewing, and actual physical possession may not be necessary. See, People v James D. Kent. I would put it to you that the smart thing to do if you encounter something great about a party on Facebook would be to disclose it, rather than risk being able to use that information.

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Ordinarily party statements are to be disclosed upon demand in New York practice, and this is a continuing obligation. (In federal practice you are expected to give it up pursuant to Rule 26-- no need to wait for somebody to ask.) One of the presenters took the position that if one is merely viewing the material on line, rather than printing a hard copy, that it need not be disclosed. I'm inclined to disagree. The Court of Appeals seems to be trending in the direction of saying that the presence of material in a computer cache is proof of viewing, and actual physical possession may not be necessary. See, People v James D. Kent. I would put it to you that the smart thing to do if you encounter something great about a party on Facebook would be to disclose it, rather than risk being able to use that information.
 
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