Access To Insured’s Social Media Accounts: No Friend Request Necessary

Many of us have been there. Sipping our morning coffee, signing into our Facebook accounts, waiting to see what notifications will greet us. We are intrigued to see that we have a friend request. Who could it be? An acquaintance from the past? A new colleague who we met at work? Whoever it is, we know that by accepting the request we will be granted access into this individual's life and will know more about them in five minutes than we would know in a lifetime of small talk.

Due to the use of usernames and passwords, there is a belief that information shared on Facebook is confidential unless publicly shared. However, courts around the country are now addressing just how private this information really is.

In cases nationwide, litigants are asking courts to grant unfettered access to other parties' Facebook or other social media accounts. Inevitably, in the age of status updates and hashtags, poking and friending, the lines between public and private information have become blurred. This trend has become increasingly prevalent in the insurance industry as insurance companies have realized the usefulness of social media in litigation.

Not surprisingly, in coverage litigation, insurance companies are requesting access to information contained in their insured's social media accounts, such as Facebook. Currently, courts are divided as to whether insurers or other involved entities are entitled to non-public portions of the social media account, requiring disclosure of usernames and passwords. As the cases suggest below, whether an insurer or other entity may view privately-held information depends on whether the publicly-shared information provides a factual predicate for further discovery into the insured's social media account.

Several cases have upheld an insurer's right to subpoena its insured's Facebook or other social media account in coverage litigation. In Beye v. Horizon Blue Cross Blue Shield of New Jersey, the plaintiffs, parents of children who allegedly suffer from anorexia or bulimia, sued their health insurer for denying claims for benefits for their children. The plaintiffs asked the court to reconsider ordering them to produce information contained on their children's social media accounts. While declining to vacate its order, the court modified the information that must be disclosed. To alleviate privacy concerns, the court required only production of the entries made on Facebook or MySpace that the beneficiaries shared with others. The court explained that  "[t]he privacy concerns are far less where the beneficiary herself chose to disclose the information."

A recent New York Supreme Court case demonstrates both the impact that information posted on Facebook has on an insurer's coverage analysis as well as the Court's hesitation to provide unfettered access into a personal Facebook account. The insured sought underinsured motorist benefits after he allegedly suffered personal injuries as a result of a car accident. The insured claimed that "he was unable to work, had difficulty walking, and was unable to lift heavy objects, run, ski, dance, or walk up stairs." The insurance company argued that no coverage existed as the insured breached its contract by misrepresenting material facts in violation of the insurance policy. In support of its argument, the insurer pointed to pictures of the insured posted on "publicly available portions" of his Facebook account. These photographs depicted the insured participating in numerous activities, including standing on top of a pool slide, climbing the pool's ladder, and bending over a boat trailer. Several of the photographs were included in an album entitled, "Another day of play . . . . I gotta get a job."

In light of this information, the insurer sought additional discovery and an order compelling the insured to provide unlimited access to his Facebook account. The Court held that additional discovery, including unlimited access to the insured's Facebook account, was unwarranted at that time. The Court found that this discovery request was overly broad and that there was no showing that the material sought was necessary and not cumulative. Significantly, however, the Court left the door open to a narrower discovery request for such information.

Due to Facebook's global presence, the issue concerning discoverability of information contained on Facebook is not only a concern in the United States. In 2009, a Canadian woman's disability benefits were discontinued after the insurance company found pictures of her seemingly having a good time on vacation. She had been on leave from her job and receiving disability benefits for severe depression. While the insurance company claimed that the Facebook pictures were only a "piece of the puzzle," they undoubtedly played a significant role in the insurance company's decision to discontinue her disability benefits.

Discoverability of social media information is not only of interest to an insurer in coverage litigation, but is also significant for insurers who are providing a defense for their insureds in litigation. In Zimmerman v. Weis Markets, Inc., a Pennsylvania court was not deterred by privacy concerns when it compelled access to social media accounts. The plaintiff sued the defendant after he allegedly suffered injuries while operating a forklift at the defendant's warehouse. The court ordered the plaintiff to disclose his username and passwords for any and all MySpace or Facebook accounts to the defendant.

Accordingly, the court permitted discovery into the non-public portions of the plaintiff's Facebook and MySpace accounts to determine whether the insured suffered the physical injuries claimed in his complaint. The court reasoned that "Facebook's privacy policy explains that users post any content on the site at their own risk and informs users that this information may become publicly available." At the same time, the court clarified that it did not support "a carte blanche entitlement to Facebook and MySpace" as part of discovery requests. Rather, the court noted that review of the publicly available information warranted further discovery into the privately-held information. I

n both coverage litigation against the insured and defending the insured in underlying litigation, discoverability of information contained in social media accounts is significant in assessing liability and preparing litigation strategy. As these cases illustrate, in addition to publicly-available information, access to an insured's privately-held information in its social media account may be compelled, especially if the discovery request is properly supported by facts casting doubt on the genuineness of the insured's representations. In today's world, it seems as though the information previously only attainable by an accepted "friend request" can just as likely be attained by a "discovery request."

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