You can’t “rummage at will” through employee Facebook accounts

Well, at least that’s what a federal court recently told a defendant-employer in this ruling.

In Tompkins v. Detroit Metropolitan Airport, the plaintiff suffered a slip-and-fall and later claimed back and other injuries. She sued her employer, who subsequently demanded that Tompkins provide full access to her Facebook account. Acknowledging that Facebook information that a user shares only with a few Facebook friends may still be discoverable, the United States District Court for the Eastern District of Michigan, emphasized that there are limits to the Facebook discovery that a party may pursue:

[M]aterial posted on a “private” Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. [T]here must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.

As I’ve discussed on this blog many times before (e.g., here and here) employers may not engage in the proverbial fishing expedition, in the hope that there might be something of relevance in a plaintiff’s Facebook account. The far better practice is to first lay a foundation that the social-media account may contain relevant information and then pursue that information or, if you’re feeling lucking, full access to the account.

(h/t: e-Discovery Case Law Update)

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