Privacy v. Discovery: The Case for Privacy (Part II)

    August 7, 2012

    In part six of Privacy v. Discovery: The Battle for Social Media Information, I continue my analysis of the line of cases holding that certain social media information behind privacy settings may be shielded from discovery:

    In Tompkins v. Detroit Metropolitan Airport, 2012 WL 179320 *1 (E.D. Mich. 2012), the court held that social media content “limited from public view” is entitled to a certain degree of protection. The airport asked a slip-and-fall plaintiff to sign an authorization releasing records from her Facebook account to investigate her ability to work and enjoy life, but the plaintiff objected to producing the “private” content.

    The court sustained the objection, rejecting the airport’s request to “rummage at will” through information that the plaintiff had specifically concealed from the general public. Before the court allowed the defendant to “engage in the proverbial ‘fishing expedition,’” it emphasized that the airport first must show the private content is reasonably calculated to lead to the discovery of admissible evidence. Without this threshold showing, the court denied the defendant’s motion to compel the plaintiff to execute authorizations for her private Facebook content.

    Unlike the first set of cases (Simply Storage & Romano, discussed earlier this week), both Crispin and Tompkins stand for the notion that the Stored Communications Act shields social media sites from disclosing private social media messages that only the sender and recipients can view.

    Moreover, these cases suggest that Facebook wall and MySpace comments hidden from the general public may not be discoverable unless the party requesting the information can show that such content will likely be relevant to the claims or defenses in the action. Accordingly, these cases demonstrate the steps a user may take to try to ensure private online information remains private. 

    In tomorrow’s post, I will report on cases where courts have created unique solutions seeking to balance each party’s interest in privacy and discovery without setting precedent one way or the other.  A complete analysis of this this topic is discussed in my article titled Social Media Crossroads: An Analysis of the Law at the Intersection of Discovery and Privacy in the Realm of Social Media, first published on Westlaw’s Computer & Internet Journal, Volume 29, Issue 23. 

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