The first three posts in this blog series addressed the kind of discovery an insured can obtain from an insurer, and prospective posts will also do so. This post, however, addresses limitations on an insurer’s discovery, namely an insurer’s social networking discovery.
The Davenport case1 concerned liability coverage for injuries Ms. Davenport sustained as a result of an accident; thus, Ms. Davenport’s physical condition was an issue.2 State Farm requested “all photographs posted, uploaded, or otherwise added to any [of Ms. Davenport’s] social networking sites or blogs, including but not limited to Facebook.com, Myspace.com, Twitter.com, or any similar websites posted since the date of the accident… .” State Farm further requested inspection of all electronic devices used by Ms. Davenport to access such social networking sites.
As for State Farm’s social networking photograph request, the Middle District of Florida Court did not preclude such discovery pursuant to any privacy right. The Court did, however, find this request was overbroad and limited the production to just post-accident social networking photographs depicting Ms. Davenport (as opposed to every photograph posted on Ms. Davenport’s social networking sites). As for State Farm’s request to inspect all electronic devices used by Ms. Davenport to access social networking sites, the Court held State Farm did “not have a generalized right to rummage at will through information that [Ms. Davenport] has limited from public view.”3
In today’s highly networked world, I figured you would benefit from this post. It was good that the Middle District of Florida Court limited the carrier’s attempt to discover Ms. Davenport’s pre-accident Facebook beach photos (hypothetically speaking, of course) and pre-accident tweet log with Kim Kardashian (hypothetically speaking, of course). It was also good that the Middle District of Florida Court precluded the carrier from gaining access to Ms. Davenport’s iPhone, iPad, and/or iWhatever. But remain cognizant of the fact that insurance companies are interested in policyholders’ social networking and that some courts may (partially) indulge the carriers’ interest.
To read previous posts in my series on discovery decisions, click here.
1 Davenport v. State Farm Mut. Auto. Ins. Co., No. 3:11-cv-632-J-JBT, 2012 WL 555759 (M.D. Fla. Feb. 21, 2012).
2 It would not be a stretch to analogize an insured’s physical condition in the liability insurance context to the condition of an insured’s property in the property insurance context.
3 Id. at *2 (internal citation omitted).