Fishin’ on Facebook: The Discoverability of Private Facebook Information

Fishin’ on Facebook: The Discoverability of Private Facebook Information

There is no question we live in a world consumed by social media where “Tweeting,” “Instagramming,” and “Facebooking” are commonplace. More specifically, people feel compelled to share intimate details, photographs and video of their lives with their “friends” on social media sites, such as Facebook. In the world of litigation, the question becomes “how should courts treat Facebook accounts for the purpose of discovery”? More specifically, under what circumstances should courts grant a requesting party access to private Facebook accounts?

In Tompkins v. Detroit Metropolitan Airport, Judge Whalen faces this question head on. In Tompkins, the Plaintiff, Lela Tompkins, alleged she was injured in a slip and fall accident at the Detroit Metropolitan Airport. Tompkins claimed she sustained injuries that disrupted her ability to work and enjoy life. Detroit Metropolitan Airport subsequently requested the release of Tompkins’s Facebook account information. Tompkins objected to the production of her entire Facebook account, which included the portions of her account that she had designated as private.

In resolving the dispute, Judge Whalen considered how other courts handled discovery disputes over private Facebook accounts. Detroit Metropolitan Airport cited a Pennsylvania and a New York state court case where the plaintiff objected to discovery of their Facebook information on the grounds that disclosure would infringe their right to privacy.

The courts in both cases rejected the plaintiffs’ arguments and concluded “relevant evidence need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Both courts ultimately compelled disclosure pursuant to Rule 26(b) of the Federal Rules. Judge Whalen notes Plaintiffs’ publicly viewable portions of their Facebook accounts

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displayed content that was contrary to the substantial injuries and loss of enjoyment of life they claimed.

Conversely, Tompkin cited a New York Appellate Division decision where the denial of a motion to compel foreclosure was upheld because

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the Defendant failed to establish there was a factual predicate for disclosure of the Plaintiff’s private Facebook information. The New York Appellate court found the Defendant was essentially looking to go on a “fishing expedition” into the Plaintiff’s Facebook account with the hopes of finding relevant information or evidence.

Judge Whalen finds that a Defendant does not have a general right to go on a fishing expedition if the content of the Plaintiff’s Facebook account is private. Pursuant to Rule 26 of the Federal Rules and the cases cited by both parties, the party seeking disclosure must have a factual predicate to obtain access to the private Facebook account. More specifically, the requested information must be reasonably calculated to lead to the discovery of admissible evidence.

Detroit Metropolitan Airport produced a photo of Tompkins holding a small dog, and video surveillance of Tompkins pushing a grocery cart, in order to show that the request for Tompkin’s Facebook information was reasonably calculated to the discovery of admissible evidence. Judge Whalen finds that the evidence is insufficient because the evidence produced was not inconsistent with the injuries Tompkins claimed she sustained, as in Detroit Metropolitan Airport’s cited cases.

Judge Whalen ultimately concludes Detroit Metropolitan Airport did not have a factual predicate to gain access to Tompkins’s private Facebook information. Additionally, Judge Whalen finds the request to disclose the contents of Tompkins’s entire Facebook account was overbroad given the highly personal information contained in Facebook accounts.

Perhaps Judge Whalen may have granted limited disclosure had Detroit Metropolitan Airport made a narrow request of Tompkins’s Facebook information. However,

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Detroit Metropolitan Airport’s request for the entire account was a red flag that they had no real factual basis for the request and rather were hoping to find relevant information in a “fishing expedition.” Let this be a lesson to all attorneys that even though Facebook contains an ocean of valuable information that could potentially force accelerated judgments or settlements, the courts are generally not going to allow the requesting party to go fishing in the hopes of finding a smoking gun.


Tracy Azinge, a student of Seton Hall University School of Law (Class of 2013), focuses her studies in the area of Intellectual Property.

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Tracy is currently participating in the Civil Litigation Clinic. After graduation, Tracy will clerk for Judge Coleman in Essex County Family Court. Tracy has worked as a legal intern for Wyndham Worldwide Corporation located in Parsippany, NJ and Bright and Sponder located in Princeton, NJ. Additionally, Tracy is currently working as a Law Clerk at the Law Offices of McCurrie, McCurrie, & McCurrie.

Comments (5):

  1. Interesting stuff. Thank you for the post!!

  2. This was very informative for employers and employees. While, I understand an employer’s desire to discover what an employee seeking injury benefits is doing in their spare time, I am glad that judges are not presuming employer’s have a right to do so. It will be interesting to see if companies start to incorporate terms into employee contracts that allows the employer to gain reasonable access to employee’s Facebook if something were to happen to the employee on the job that could require compensation.

  3. I agree with what Tameeka said. This case implicates the whole “expectation of privacy” issue. It seems to be a given that the employee’s “public” information and pictures on Facebook are unprotected and usable, the parts that are deemed “private” are protected. It would be interesting to watch the progression of cases regarding Facebook use, particularly if used at work, or on an employer’s computer. Can private information posted at work be accessed by the employer for discovery purposes?

  4. I wonder what a narrow request for Facebook information would look like? Do you request only a certain time period? Only photos? The strategies will continue to develop over time. I agree that a fishing expedition is improper, but in reality demanding Facebook information is not different that requesting emails or personal dairies, which courts have allowed before.

  5. So it is clear that the requesting party is not allowed to go on a fishing expedition by gaining access to a private account. However, I wonder how a court would decide if the requesting party was a mutual friend with the person with the private account, but only had limited access to the account. Facebook allows users to set their settings to only show limited parts of their profile. It would seem to me then that the account is no longer considered “private” in regards to the mutual friend. But what about if the mutual friend isn’t the requesting party, but maybe a witness, who is cooperating with the requesting party, that has the access. Has the Facebook user given up their right to privacy in that situation? All interesting stuff and I’m sure it’ll be addressed by the courts eventually, if it already hasn’t.

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