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Protecting a Facebook personal page from insurance company fishing expeditions

December 11, 2017 by Steven M. Gursten

Steps Michigan car accident lawyers can take to stop insurance company ‘fishing expeditions’ into the Facebook personal page of clients to harass and intimidate; don’t let your client be made a victim twice 

Facebook personal page

Car accident lawyers need to put a “No Fishing” sign on the Facebook personal page of each of their clients.

That’s because the hot thing now for the defense to do in auto accident lawsuits (and even in pre-litigation with insurance claims adjusters) is to ask for full, unfettered access to a car accident injury victims’ Facebook personal page and social media accounts in the hopes that something – anything – will show up.

This doesn’t have to be incriminating evidence, however.  Anything that can be used to harass, intimidate and embarrass a car accident victim will suffice.

These are called “fishing expeditions” for a reason.

The problem I’ve noticed is that many lawyers who claim they handle car accident injury cases just roll over and agree to give their clients’ Facebook and social media accounts over to the defense when they are requested in discovery. Many lawyers fall for these requests hook, line and sinker, recklessly allowing insurers to fish around in the Facebook personal page of their clients.

Other lawyers who do practice plaintiff personal injury law might sense there is a big problem with these Facebook discovery requests, but they don’t know how to adequately protect their clients over-reaching defense discovery. Lawyers must do a better job of educating judges to respect an accident victims’ privacy and to protect this right to privacy against unwarranted intrusions by insurance companies and defense lawyers whose only motivation is to come up with something – anything – they can use to avoid having to pay full and fair compensation for injuries and pain and suffering.

Protecting your client’s Facebook personal page from discovery

Personal injury attorneys have very strong arguments to stop these defense “Facebook fishing” requests.

These legal arguments to stop inappropriate Facebook and social media discovery have the added benefit of being right.

And as lawyers we need to be making these arguments.  These are discovery battles we need to win for or clients.  It is our job as auto lawyers to protect our clients when the defense overreaches for inappropriate reasons that have nothing to do with defending a car wreck case on the merits.

Personally, I’ve never lost a battle to keep protect my clients’ Facebook privacy intact against ill-intentioned defense attorneys.

Today, I’m going to share the arguments that have worked for me as a Michigan car accident lawyer – and will, hopefully, work for other lawyers in their efforts to protect their clients.

How does Michigan law protect a car accident victim’s Facebook personal page?

There is no Michigan state case law exactly on point regarding production of Facebook materials.

What the Michigan state courts do say, however, is that litigants – such as auto insurance companies – cannot use the discovery process to simply engage in a “fishing expedition” to see what they find so they can use this information to embarrass, harass, or intimidate people who were hurt through no fault of their own.

For example, in Augustine v. Allstate Ins Co, 292 Mich App 408, 419 (2011), the Michigan Court of Appeals quoted VanVorous v. Burmeister, 262 Mich App. 467, 477 (2004) for the proposition that:

“‘Michigan’s commitment to open and far-reaching discovery does not encompass fishing expedition … Allowing discovery on the basis of conjecture would amount to allowing an impermissible fishing expedition.’”

Additionally, I always rely on the well-reasoned and well-written (albeit non-binding on other trial courts) opinion by Kent County Circuit Court Judge Dennis B. Leiber in the case of Rough v. Roger Graham Trucking, LLC.

There, Judge Leiber shut down a defendant’s proposed fishing expedition into a plaintiff’s private Facebook posts with the following explanation:

“Defendants note that Plaintiff’s public Facebook page shows pictures of her wedding and a visit to the Grand Canyon, as well as a statement that she can no longer ride her motorcycle due to the injuries she sustained in the crash at issue. However, none of these photos or comments are inconsistent with her alleged injuries. Just as the plaintiff in Tompkins [a U.S. District Court case that I will discuss below], Ms. Rough ‘does not claim that she is bedridden, or that she is incapable of leaving her house or participating in modest social activities.’”

What protection do federal courts provide for a car crash victim’s Facebook personal page?

Luckily, the U.S. District Court for the Eastern District of Michigan has issued two important rulings that stand for the proposition that:

An insurance company cannot get access to an injured person’s social media unless there’s some indication there is discoverable evidence within.

In Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012), the U.S. District Court denied the defendant’s request to access the plaintiff’s Facebook personal page on the grounds that it amounted to an impermissible “fishing expedition”:

The Defendant “does not have a generalized right to rummage through information…limited from public view.”

Significantly, the public portion of the Tompkins’ Facebook profile showed a picture of her holding a very small dog, and another picture of her at a birthday party. The Court said that a picture of the Plaintiff holding a dog weighing “no more than five pounds,” and a second picture of her standing with friends at a birthday party did not demonstrate the relevance of private postings on her page.

In other words: The publicly viewable pictures did not contradict the Plaintiff’s testimony, or otherwise indicate that discoverable information was contained inside of her profile.

Similarly, in Chauvin v. State Farm Mutual Automobile Insurance Company, ___F Supp 2d___; 2011 U.S. Dist. LEXIS 121600 (ED Mich, Oct. 20, 2011), the U.S. District Court denied the defendant’s motion “to compel the production of Plaintiff’s … Facebook password” for the following reasons:

  • “The discovery requested is ‘available to Defendant through less intrusive, less annoying and less speculative means than this’ even if it were deemed relevant.”
  • “There is no indication that granting access to Plaintiff’s private Facebook account would be ‘reasonably calculated’ to lead to discovery of admissible information.”

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