In Davenport v. State Farm Mutual Insurance Company, 3:11-CV-632-J-JBT, 2012 WL 555759 (M.D. Fla. Feb. 21, 2012) the defendant in a personal injury action requested “[a]ll photographs posted, uploaded, or otherwise added to any social networking sites or blogs, including but not limited to Facebook.com, Myspace.com, Twitter.com, or any similar websites posted since the date of the accident alleged in the Complaint.” The scope of the request included “photographs posted by others in which Chelsea Davenport has been tagged or otherwise identified therein.” The plaintiff objected to this social media discovery as irrelevant, overly broad, and as improperly invading the plaintiff’s privacy since certain social media content was hidden from the defendant’s (and the public) due to her privacy settings.
In considering whether the compel the plaintiff to turn over her social media evidence, the court reasoned that social media content is generally “neither privileged or protected by any right of privacy.” But, “[a] request for discovery must still be tailored, however, so that it appears reasonably calculated to lead to the discovery of admissible evidence” in order to prevent the defendant from engaging “in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s [social media] account[s].”
Initially, the district court determined that the request, as phrased, was overly broad since it was “not limited to photographs taken of, or even by, the Plaintiff” and therefore could be read to include “every photograph posted on any [social media site] in the world” since the date of the accident. However, since “Plaintiff’s physical condition” and “quality of life” were issues in this case, the court “order[ed] Plaintiff to produce any photographs depicting her, taken since the date of the subject accident, and posted to a [social media site], regardless of who posted them.” The plaintiff was therefore required to produce photos that other social media users “tagged” her in, since those photos would be within her possession custody and control.
The Davenport court seems to strike the appropriate balance between providing relevant discovery of the plaintiff’s injuries on the one hand, and preventing access to over broad information about the plaintiff’s personal life on the other. Interestingly, this court did not require the defendant to demonstrate that it had reason to believe discoverable information may exist or her profile – by, for example, presenting evidence obtained from the”public” portions of her profile – as other courts have required prior to allowing discovery into private social media content.