There is no “generalized right to rummage” through an adversary’s Facebook account

Tompkins v. Detroit Metro. Airport, 2012 WL 179320 (E.D. Mich. January 18, 2012)

Plaintiff filed a personal injury lawsuit against defendants claiming she was impaired in her ability to work and enjoy life. One of the defendants filed a motion with the court asking it to order plaintiff to authorize access to her entire Facebook account. The court denied the motion. Finding that defendant had not made a “sufficient predicate” showing that the sought-after information was relevant, and that the request was overly broad, the court held that defendant “[did] not have a generalized right to rummage at will through information that [plaintiff had] limited from public view.”

The court distinguished two other well-known social media discovery cases, Romano v. Steelcase and McMillen v. Hummingbird Speedway. In those cases, the Facebook users had posted photos of themselves engaged in activities that were inconsistent with their claimed injuries (e.g., going fishing and traveling to Florida). The publicly-visible photos that plaintiff in this case posted, which defendant argued made the rest of her account relevant, were of her holding a 2-pound dog, and standing with friends at a birthday party. “If [her] public Facebook page contained pictures of her playing golf or riding horseback,” the court noted, “[defendant] might have a stronger argument for delving into the nonpublic section of her account.”

The court made clear that its decision did not address the question of whether a Facebook user has a reasonable expectation of privacy in so-called private pages. (And there’s nothing in the decision to suggest that inquiry should be answered in the affirmative.) The court also noted that it was not answering the question of whether one could challenge a subpoena to Facebook under the Stored Communications Act (18 U.S.C. 2701 et seq.) as contemplated by Crispin v. Christian Audigier, 717 F.Supp.2d 965 (S.D. Cal. 2010).

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