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October 24, 2011
Insurance Company's Request to Compel Production of Facebook Password Fails (with Costs)--Chauvin v. State Farm Mutual
[Post by Venkat Balasubramani with a comment from Eric]
Plaintiff suffered an auto accident and sought to recover attendant care benefits under Michigan's no-fault statute. Defendant, State Farm, insured the plaintiff, and sought an order compelling production by plaintiff of "an email address and password for Defendant to examine [plaintiff's] Facebook account." Defendant also sought:
[the] username, email address and password for [plaintiff's] Facebook.com account . . . the name, address and telephone number of each 'friend' on [plaintiff's Facebook.com account, and] . . . all Facebook.com account information for [plaintiff], including, but not limited to, all photographs, messages, status posts, wall posts, comments, groups, and group memberships.
The court rejects the request. The accident in question occurred in 1993, and defendant itself argued that plaintiff's current medical condition was unrelated to the 1993 accident. (This was the basis for State Farm's denial of plaintiff's claims.) The court notes that under Michigan law, after an insurer denies a claim based on certain grounds, it is estopped from arguing additional grounds for denying the claim. Plaintiff also pointed to provisions of Michigan's No Fault Act which limits discovery to facts about an injured person's earnings and costs of treatment. The court also concluded that the sought-after discovery is not relevant, and flatly rejects State Farm's argument that plaintiff's Facebook posts will contain information about his daily activities and "his thoughts." Moreover, any information that State Farm could get through the Facebook account could be determined through other means.
The court noted that State Farm's requests are more than a fishing expedition. The interrogatory that sought the name, address and telephone number of each of plaintiff's friends was "so far outside the realm of discoverable information" that the court concludes it was intended to "intimidate and harass plaintiff."
Parties have gotten out-of-control in seeking social networking profile information. While Facebook and other sites may indeed be a discovery goldmine, this does not mean that you can freely request access to this information without articulating to the court some basis for why the sought after information is relevant or appears reasonably calculated to lead to the discovery of admissible evidence. A generic "we want insight into what the party is thinking" will not suffice, and is probably a red flag to the court. This isn't the first time a court has smacked down a party who requested access to Facebook information without articulating a basis of relevance. (See "Request for Discovery of Facebook Profile and Photos Rejected as a Fishing Expedition.")
Parties and their lawyers should take note of this and other similar decisions. Courts won't hesitate to push back on overly broad requests to access a party's social networking profile information.
The insurance company's request was clearly out-of-bounds. What were they thinking?
Yet, as the joke goes, "there's an app for that." The funny--and disturbing--thing is that the insurance company could have downloaded almost all of its requested information--including Facebook friends' contact info--through the Facebook Connect API. See the list of things an app can request from Facebook once the user accepts the app. There's something troubling to me that the insurance company can't get the info under the court's supervision but can get virtually the same info directly from Facebook without any supervision at all if it can persuade the plaintiff to accept its app.
Posted by Venkat at October 24, 2011 08:05 AM | Evidence/Discovery