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February 22, 2012
Courts Continue to Grapple with Discovery Disputes Around Social Networking Evidence
[Post by Venkat Balasubramani]
Tompkins v. Detroit Metro Airport, 10-10413 (E.D. Mich.; Jan. 18, 2012)
This is a slip and fall case where the plaintiff alleges that injuries she suffered at Detroit’s Metro airport affected her quality of life and ability to work. Defendant asked plaintiff to release her medical records and records from her Facebook account. She refused as to the Facebook account, arguing that the private portions of her account should not be turned over in discovery.
The court says (citing to McMillen v. Hummingbird and Romano v. Steelcase) that there’s no privilege as to information contained in social networking accounts. Access to this information by an opponent in litigation is governed by traditional discovery principles. The court notes that in both Romano and McMillen the plaintiffs made injury claims that were inconsistent with information contained in the public portions of their social networking accounts. The court says that while there is no privilege protecting private (or quasi-private) information in a social networking account, “the [d]efendant does not have a generalized right to rummage at will through information that [p]laintiff has limited from public view.” The court says there has to be a threshold showing that “the requested information is likely to lead to the discovery of admissible evidence.” [Translation: a standard argument in every personal injury case that the plaintiff must have posted pictures of herself frolicking on the beach will not fly.]
Here, defendant argued that the public postings and surveillance photographs satisfied this standard. The court says no. The picture of plaintiff holding a “very small dog and smiling” is not inconsistent with plaintiff’s claims of being injured. (“The dog in the photograph appears to weigh no more than five pounds and could be lifted with minimal effort.”) The surveillance photograph showing plaintiff pushing a grocery cart similarly is not inconsistent with plaintiff’s claim of being injured. The court rejects defendant’s attempt to access the private portion of plaintiff’s Facebook account:
If the Plaintiff’s public Facebook page contained pictures of her playing golf or riding horseback, Defendant might have a stronger argument for delving into the non-public section of her account. But based on what has been provided to this Court, Defendant has not made a sufficient predicate showing that the material it seeks is reasonably calculated to lead to the discovery of admissible evidence.
The court also says that the request for the entirety of the account will sweep in information that is in no way relevant to the case and is thus overly broad.
Davenport v. State Farm Mutual Auto Ins., 2012 U.S. Dist. LEXIS 20944 (M.D. Fla; Feb. 21, 2012)
Here, the insurance company defendant sent a request to plaintiff seeking all photographs posted to social networking sites, whether posted by plaintiff or by a third party. As in Tompkins, the court says there’s no special privilege that attaches to social networking content, but the rules of discovery limit an opponent’s ability to request this information.
Plaintiff proposed that she be required to produce only photographs taken by her that depict her. She says the photos she has been “tagged” in do not satisfy the Rule 26 relevance standard, but the court disagrees. The court says plaintiff has to produce all photographs which depict her, whether she posted them or she had been tagged in the picture. The court does limit this by saying the default discovery rules only require a party to produce information that is within the party’s “possession, custody, or control.” The court says this “likely” means that plaintiff will “need to produce only photographs that she posted or in which she was tagged.” The court does not offer any additional details on whether material posted to a social networking site is still within that party’s “possession, custody, or control.”
Separately, defendant had asked to inspect any devices used to post any material to social networking sites, but the court shoots this down.
Courts are really all over the place on issues relating to the discovery of information posted to social networks. The decisions grapple with (but none coherently address) the following issues:
• whether any of the communications are covered under the Stored Communications Act and how this affects discoverability;
• whether an opponent can obtain direct access a non-party or witnesses social networking site (several decisions have ordered password swaps, waivers, or in-camera reviews);
• whether the discovery request should be directed to the social network directly or to the party whose information is sought;
• what threshold showing is required form a party seeking discovery;
• whether information posted to a social networking site is within the control, possession or custody of the party who posted it (for purposes of Rule 26).
Courts appear perfectly willing to smack down discovery requests that overreach, but continue to struggle with finding a balance and dealing with the logistical issues inherent in these types of discovery disputes.
Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case -- McMillen v. Hummingbird Speedway
Deleted Facebook and MySpace Posts Are Discoverable--Romano v. Steelcase
Judge Offers to Facebook 'Friend' Witnesses in Order to Resolve Discovery Dispute -- Barnes v. CUS Nashville
Plaintiff Can't be Forced to Accept Defense Counsel's Facebook Friend Request in Personal Injury Case -- Piccolo v. Paterson
Court Orders Plaintiff to Turn Over Facebook and MySpace Passwords in Discovery Dispute -- Zimmerman v. Weis Markets, Inc.
Pennsylvania Court Orders Personal Injury Plaintiff to Turn Over Facebook Password to Defendant -- Largent v. Reed