Part 4 of this blog series touched upon insurance companies trying to get social media information, such as Facebook, through discovery.1 I am witnessing an increased effort by insurance companies to obtain social media information during litigation, and thought it worthwhile to expand on the subject.
Several courts around the country have required the party requesting access to social media “establish a factual predicate with respect to the relevancy of the evidence.”2 Such a threshold showing is designed to prevent the requesting party from “conducting ‘a fishing expedition’ into plaintiff’s Facebook account based on the mere hope of finding relevant evidence.”3 More specifically:
The content of social networking sites is not protected from discovery merely because a party deems the content ‘private.’ See E.E.O.C. v. Simply Storage Management, LLC, 270 F.R.D. 430, 434 (S.D. In[d]. 2010); Glazer v. Fireman’s Fund. Ins. Co., 2012 WL 1197167 (S.D.N.Y. Apr. 5, 2012). But other courts, like the court in Romano v. Steelcase, Inc., 907 N.Y.S. 2d 650, 653-657 (N.Y. Sup. Ct. 2010), have charged a course that allows discovery of a plaintiff’s social networking site content where the defendant makes a threshold showing that publicly available information on those sites undermines the plaintiff’s claims. See, e.g., Thompson v. Autoliv ASP, Inc., 2012 WL 2342928 *4 (D. Nev. June 20, 2012) (allowing discovery where material obtained by defendant from plaintiff’s public Facebook account negated her allegations that her social networking site accounts were irrelevant); Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388-89 (E.D. Mich. 2012) (denying discovery as overly broad where publicly available information was not inconsistent with the plaintiff’s claims)… . Courts requiring such a showing do so, at least in part, to guard against the ‘proverbial fishing expedition.’ As the Tompkins court explained it, a ‘[d]efendant does not have a generalized right to rummage at will through information that [p]laintiff has limited from public view.’ Absent some ‘threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence,’ a ‘[d]efendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in [p]laintiff’s Facebook account.’ The Court agrees with this circumspect approach to the discovery of social networking site content.4
To read previous posts in my series on dynamite discovery decisions, click here.
2 McCann v. Harleysville Ins. Co. of N.Y., 910 N.Y.S. 2d 614, 615 (N.Y. App. Div. 2010).
4 Keller v. Nat’l Farmers Union Prop. & Cas. Co., No. CV 12-72, 2013 WL 27731 at *4 (D. Mont. Jan. 2, 2013) (internal citations omitted).