In Tompkins v. Detroit Metro. Airport, No. 10-10413, 2012 WL 179320 (E.D. Mich. Jan. 18, 2012), a federal court denied a Defendant’s motion to compel the Plaintiff to execute an authorization that would have given the Defendant complete access to the Plaintiff’s Facebook account. This case provides guidance about the threshold showing necessary to obtain complete access to a plaintiff’s social media account. Specifically, the court addresses what is necessary to demonstrate a reasonable likelihood that the non-public portion of a plaintiff’s social media account will contain relevant information.
Plaintiff Tompkins was injured as the result of a slip and fall accident at Detroit Metropolitan Airport on December 29, 2005. She commenced a lawsuit against the airport authority, as well as Northwest Airlines, in whose terminal she fell, to recover damages for personal injuries she allegedly sustained. Plaintiff claimed that her injuries caused her pain, required surgeries to her knee and back, and had impaired her ability to work and enjoy life.
During the course of discovery, Northwest requested that Plaintiff execute an authorization for the production of her entire Facebook account. Plaintiff objected to the production of her entire Facebook account, including the non-public portions. Thereafter, Northwest filed a motion seeking an order compelling Plaintiff to execute the authorization for her Facebook records. Northwest argued that the photographs available on Plaintiff’s public Facebook profile indicated that her physical abilities and activities were not as limited as she alleged. In support of its motion, Northwest attached photographs from Plaintiff’s Facebook profile, including one showing her lifting a small dog and another of her standing at a birthday party. Northwest also attached photographs obtained by a private detective that showed her pushing a grocery cart.
Northwest relied on McMillen v. Hummingbird Speedway, Inc., No. 113-2010CD, 2010 WL 4403285 (Pa. Ct. Com. Pl. Sept. 9, 2010) and Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. Suffolk County 2010) to support its motion to compel. The courts in McMillen and Romano had rejected the plaintiffs’ arguments that social media is privileged and protected by a right of privacy. Instead, the courts had found that the social media accounts – including non-public portions – were relevant and discoverable.
While the Tompkins court agreed that “private” Facebook postings generally are not privileged or protected by a common law right of privacy, it stated that a defendant “does not have a generalized right to rummage at will through information that Plaintiff has limited from public view.” Rather, there must be a “threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.” If this were not the case, 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.”
The court distinguished the facts presented from McMillen and Romano where the public portion of the plaintiffs’ social media profiles clearly contradicted the plaintiffs’ allegations that they had sustained disabling injuries. For example, in McMillen, the plaintiff claimed possible permanent impairment of his health and the inability to enjoy certain pleasures of life, but public portions of his Facebook account contained comments about his fishing trips and a trip to the Daytona 500. In Romano, the plaintiff claimed to be confined to her house and bed, but her public profile showed that she continued to have an active lifestyle, including travelling to Florida and Pennsylvania. The courts in McMillen and Romano had found that these inconsistencies made it reasonable to assume that the non-public portions of the plaintiffs’ social media accounts would contain additional inconsistencies.
In contrast, the Plaintiff in Tompkins had not alleged that she was bed-ridden or incapable of leaving her house and the photographs relied on by Northwest showed her engaged in activities that could be performed with minimal effort. As such, the inconsistency between her allegations and the public portion of her Facebook account was not significant enough to provide a factual predicate for complete access. The court also noted that Northwest’s request was overly broad because the Plaintiff’s Facebook account could contain voluminous personal material that is irrelevant to the lawsuit. Accordingly, the court denied Northwest’s motion to compel.
Significantly, the court noted that if the public portion of Plaintiff’s Facebook account had shown her “playing golf or riding horseback” (instead of lifting a small dog), there might have been a stronger basis for Defendant to obtain complete access to her account.
The court’s decision in Tompkins highlights the reluctance of courts to allow a defendant complete access to a plaintiff’s social media account. If the defendant seeks complete access, it should be prepared to demonstrate a factual predicate – often based on an inconsistency between the public portion of the social media account and the allegations in the Complaint – to obtain such access. The Tompkins decision provides helpful guidance to defendants about the threshold necessary to demonstrate this factual predicate. If the defendant cannot demonstrate a factual predicate, it may be better served to narrowly tailor its discovery requests to seek only relevant information from the social media account.