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On Tuesday, I posted about a recent development on the issue of
Facebook firings, and how we can continue to develop the applicable
standard for analyzing that issue as the decisions keep coming.
Today, I note the recent decision in Tompkins v. Detroit
Metropolitan Airport, a case from the federal court in the
Eastern District of Michigan, which addresses whether you can
discover one's private Facebook account information in the
context of a lawsuit.
The decision should not be considered as just another case from
another judge in another forum. Rather, it is worthwhile to
assimilate all of the decisions on this issue as well, and notice
the emerging standards that will be applicable to your next lawsuit
when this issue comes up. True, Tompkins involves a slip
and fall case, but the rule of law articulated is no less
applicable to our employment law world.
The defendant in Tompkins demanded that the plaintiff
provide signed authorizations permitting the defendant to access
plaintiff's prior medical records and records from her Facebook
account. Plaintiff provided the medical authorizations (her
physical and emotional state were clearly at issue), but refused to
provide access to her private Facebook pages. In ruling on the
defendant's motion to compel production, the court first
reaffirmed what has become a starting premise in this area: That
even "private" profile information that is not available
to the general public is not automatically shielded by any
privilege or general privacy right. Balancing that, however, is the
premise on the other hand that a defendant "does not have a
generalized right to rummage at will through information that
plaintiff has limited from public view."
That is the key, then. Balancing. And that is what the court in
Tompkins did. The court found that the defendant's
purported connection from what was on plaintiff's public pages
to what may be on her private pages, was tenuous at best:
"If the Plaintiff's public
Facebook page contained pictures of her playing golf or riding
horseback, Defendant might have a stronger argument for delving
into the nonpublic section of her account. But based on what has
been provided to this Court, Defendant has not made a sufficient
predicate showing that the material it seeks is reasonably
calculated to lead to the discovery of admissible
evidence."
Employer Take Away: What should you as an
employer take away from this development?
The theme is important, so it's worth repeating. You should
not do, just to do. In other words, just as you should no longer be
trigger happy with adverse employment actions taken without a plan,
you (and your attorney) also should not necessarily turn a request
for social media account information into a boilerplate, form
request in litigation.
There should be a strategy and a plan. Figure out precisely what
you need, and why you need it, and do sufficient due diligence with
the publicly-available information so that you can make the best
case to the judge as to why you absolutely need access to what you
are seeking. You may not get a second bite of the apple.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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