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Welcome to Jack "Out of the Box." This is a spin-off of the Firm's InfoLaw Newsletter, much like "CSI: Miami" is a spin-off from "CSI." Except without all the corpses. I plan to update the blog at least weekly. Really. It's not like when I used to promise my mom to clean my room once a week. I'm more mature now. And of course, the InfoLaw Newsletter will continue every two weeks. The blog will feature shorter pieces, and ideally, reader feedback. Should be fun. Oh yeah, and informative.

Common Sense Ruling On Facebook Discovery

Feb 20, 2014

Let’s suppose you’re injured and you file a lawsuit. Does that give the defendant the right to rummage through your private Facebook account hoping to find evidence that you’re not hurt nearly as badly as you claim? According to a recent case in a Detroit federal court, the answer is no. For the most part.

Lela Tompkins fell at the Detroit Metropolitan Airport. She filed a lawsuit against the airport, claiming that as a result of her injuries she was impaired in her ability to work and to enjoy life. The airport asked Ms. Tompkins to sign a release that would allow the airport to review her medical records, as well as a release allowing the airport to access her private Facebook account. Ms. Tompkins agreed to release her medical records (standard operating procedure in this kind of case) but refused to give the Facebook release.

The airport asked the court to compel Ms. Tompkins to provide the release. The court refused.

The airport cited several cases where personal injury defendants were given access to the plaintiff’s Facebook accounts. In one of the cases, a plaintiff named McMillan sued for “substantial injuries” that included “permanent impairment of his health, strength and vitality.” But, according to his Facebook account, those injuries apparently didn’t impair McMillan’s ability to go on fishing trips or attend the Daytona 500. He posted comments about how much he enjoyed both.

But in Tompkins’ case, she hadn’t posted anything on her public pages that contradicted her injury claims. The airport produced a photo from Tompkins’ public Facebook page which showed her standing with two other people at a birthday party holding a small dog. But the court noted that Tompkins never claimed to be bed ridden, and the dog appeared to weigh less than five pounds.

So while the court denied Tompkins argument that her private Facebook account was “privileged” from production in discovery, it also held that a defendant has to come forward with some evidence that establishes some reason to believe that the review of the private Facebook account would lead to the discovery of relevant evidence. Think of it is as a “where there’s smoke there’s fire” analysis. If a defendant can’t produce some smoke, he can’t go looking for the fire. In the McMillan case, the postings about the fishing trip and the Daytona 500 were the smoke. But in Tompkins case, the airport couldn’t produce any smoke, which made its request to go looking for fire a “proverbial fishing expedition.”

The Tompkins ruling strikes me as entirely reasonable. A plaintiff shouldn’t be forced to sacrifice every bit of personal privacy merely for filing a lawsuit. But a defendant is entitled to expose a phony claim. This decision presents common sense balance.

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