The airline Defendant in a slip-and-fall case at an airport brought a motion for Plaintiff to produce her entire Facebook profile, including the private sections. Magistrate Judge R. Steven Whalen denied the motion. Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387 ( E.D. Mich. 2012).
The Court quickly recognized that information posted that is accessible only to a select group of “Friends” is generally neither privileged nor protected by privacy rights based in either common or civil law. Tompkins, at *388. With the above in a holding pattern, the Court stated the following:
Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with Rule 26(b) and with the cases cited by both Plaintiff and Defendant, there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.
Tompkins, at *388.
Judge Whalen held that the Plaintiff’s public postings did not show the private posts were relevant. The Court explained that a public photo of the Plaintiff holding a small dog and another of the Plaintiff standing with two people at a birthday party were not inconsistent with her injury or the medical information already produced. Tompkins, at *388-389. As the Court explained:
[B]ased 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.
Tompkins, at *389.
The Court also held the request for the entire Facebook account was overly broad, because it could “contain voluminous personal material having nothing to do with this case.” Tompkins, at *389.
Bow Tie Thoughts
Relevancy has not been “un-friended” because of social media in discovery. Just because a party has a social media profile, does not mean that the entire profile might be relevant to a case.
There are times when the production of an entire social media profile is justified, because it contains relevant information. However, as with cases where the production of a hard drive is warranted, the producing party must review for both relevancy and whether any communications are privileged. Such a situation may include private messages exchanged between a husband and wife. These private social media communications would then be no different than email.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.