Personal Injury Defendant Denied Access to Plaintiff's Private Facebook Postings

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Tompkins v. Detroit Metropolitan Airport, No. 10–CV–10413, 2012 BL 15520 (E.D. Mich. Jan. 18, 2012) In a personal injury claim, the U.S. District Court for the Eastern District of Michigan denied the defendant's motion to compel the plaintiff to release material from the private areas of her Facebook account. While not finding that the material was protected by privilege or privacy, the court held that the defendant demonstrate failed show that the request was likely to lead to the discovery of admissible evidence and was overly broad, given the amount of information in her account.

Defendant Sought Plaintiff's Private Facebook Postings

Lela Tompkins claimed that she was injured when slipped in water resulting from a leaking roof at Detroit Metropolitan Airport. She sued, claiming negligence and injuries to her back which impaired her ability to work and enjoy life. Defendant Northwest Airlines filed a motion for production of Tompkins' medical records and her entire Facebook account, including material that was inaccessible to the public because she had designated that part of her account as private. Tompkins signed authorizations to release her medical records to defendants but objected to release of her Facebook information. In support of its motion, Northwest Airlines cited two opinions which permitted discovery of Facebook postings. In McMillen v. Hummingbird Speedway, Inc., No. 113–2010 CD (Pa. Ct. of Common Pleas) (Sept. 9, 2010) and Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010), each court held that such postings were not privileged, nor would their disclosure infringe a right of privacy, and that they were traditionally discoverable under Fed. R. Civ. P. 26(b)as "reasonably calculated to lead to the discovery of admissible evidence." Tompkins at 2. Tompkins cited a case in which the court denied a motion to compel the disclosure of Facebook information because the defendant "failed to establish a factual predicate with respect to the relevancy of the evidence," finding that "defendant essentially sought permission to conduct 'a fishing expedition' into plaintiff's Facebook account based on the mere hope of finding relevant evidence." Id. at 3 (quoting McCann v. Harleysville Insurance Co. of New York, 78 A.D.3d 1524, 1525 (N.Y. App. Div. 2010)).

Access to Entire Facebook Account Denied

The court observed that the Sixth Circuit had not yet addressed the discovery of information posted on social networking web sites. The court noted that in both cases cited by Northwest Airlines, the public Facebook posts contained information that clearly contradicted the plaintiffs' claims of disabling injury, such as descriptions of extensive traveling by a plaintiff who was allegedly bedridden. — "Fishing Expedition" Not Permitted While endorsing the view that material on a Facebook page that is accessible only to a selected group of people is not protected by accepted legal privileges or common law notions of privacy, the court found that Northwest "does not have a generalized right to rummage at will through information that Plaintiff has limited from public view." Id. Rather, such information must be reasonably calculated to lead to the discovery of admissible evidence, as required by Rule 26(b), the court wrote. Without such a limitation, defendants would be allowed to engage in a "fishing expedition," hoping there might be something of relevance in Tompkins' Facebook account. Id. at 3. — Public Postings Not Relevant to Injury Claim Northwest argued that some of Tompkins' public postings showed the relevance of the private postings. For example, publicly posted photographs showed Tompkins at a party while apparently standing and holding a small dog. The court was unpersuaded. Unlike the plaintiffs in McMillen and Romano, Tompkins did not claim to be bedridden or incapable of leaving her house or participating in modest social activities, the court observed. "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." Id. at 4. Moreover, Northwest's request for the entire Facebook account, "which may well contain voluminous personal material having nothing to do with this case," was overly broad, the court found. Id. The court therefore exercised its discretion under Rule 26(b)(2) to limit the scope of discovery on that ground, as well, and accordingly denied Northwest's motion to compel the plaintiff to sign an authorization to grant the defendant access to her Facebook account. DisclaimerThis document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.

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