Defense lawyers can’t get enough of Facebook. The potential for photos of personal injury plaintiffs gallivanting in tropical locales with umbrella drinks is too enticing to resist. We know the rules – we don’t “friend” our plaintiffs, we don’t initiate contact, but we monitor religiously what they share with the world. We’ve even starting asking about social media accounts in Plaintiff Fact Sheets and at depositions. The potential for information relevant to plaintiffs’ damages claims is limitless; let’s face it, we’re in love with social media.
Seems a federal judge in Louisiana doesn’t share our love. Recently, in Farley v. Callais & Sons, LLC, Civil Action No. 14-2550 (E.D. La. Aug. 10, 2105), a personal injury case, United States Magistrate Judge Michael North limited Defendants’ efforts to obtain discovery regarding Plaintiff’s Facebook account. In the process, Judge North had some harsh words about social media discovery and the lawyers who pursue it.
In Farley, Defendants sought production of all of the Plaintiff’s “Facebook activity and records subsequent to the alleged incident on May 24, 2014.” Seems reasonable. To accomplish this, Defendants sought to compel the production of Plaintiff’s Facebook password and log-in information, as well as a signed authorization for Facebook itself to independently turn over all the requested materials. The Judge was having none of it. Indeed the court lashed out at defendants, observing that “smart, opportunistic lawyers are now routinely seeking to exploit the ‘brave new world’ feel of this ever-evolving aspect of how many average Americans go about their daily lives to gain an advantage in litigation.” Um, with all due respect Judge, how a plaintiff goes about his daily life is 100% relevant to personal injury litigation, where the claims have everything to do with plaintiff’s ability to go about his daily life.
Defendants (unhelpfully) argued that“[i]f the plaintiff has nothing to hide, then he should not object to producing his Facebook records.” Alright, probably not the best response and certainly not the law. The issue obviously is not whether or not the plaintiff has something to hide. The issue is whether the information contained on a plaintiff’s Facebook page is reasonably calculated to lead to admissible information. Don’t forget, we’re just talking about discovery here, not admissibility. Facebook posts regarding a plaintiff’s activities after his alleged injury are more than reasonably calculated to lead to admissible evidence and should be eminently discoverable. How is requesting post-injury Facebook posts any different from deposing a plaintiff’s family and friends to learn about the activities plaintiff currently engages in? Or requesting what has been a standard deposition document request for decades – all photos, diaries, and journals documenting plaintiff’s post-injury activities? We’ve subpoenaed gym and country club membership records. We’ve conducted endless discovery to find out just how, if at all, plaintiff’s life has changed after his alleged injury. Now, just because plaintiff himself has chosen to ruminate about his life on a “private” Facebook page, as opposed to the journal on his nightstand, it has become intrusive and opportunistic to seek that information in discovery? It should not be.
In the end, Judge North permitted tailored Facebook discovery in Farley, ordering production of all posts his lawyer determined to be related to the accident in question or plaintiff’s alleged injuries/post-accident capabilities. The Judge would not, however, require Plaintiff to share his Facebook login information or sign an authorization permitting defendants to get the information directly from Facebook. Lesson learned for defense lawyers – private social media accounts are getting increased protection from the courts. Discovery efforts should be focused on public social media information and on tailoring private social media discovery requests to be perceived as least intrusive as possible.