The Continued Debate on Discoverability of Social Media

The following is just another case (one of the most recent in Louisiana federal courts) on the issue: Are a plaintiff’s Facebook pictures discoverable when they are asserting a personal injury claim for neck injuries?

Farley v. Callais & Sons LLC, No. CIV.A. 14-2550, 2015 WL 4730729, (E.D. La. Aug. 10, 2015) addresses the issue of the extent of a person’s Facebook page that is discoverable square on.

The opinion follows a motion to compel filed by the defense after the plaintiff objected to the defense’s interrogatory and request for production. In short, the court did not compel the plaintiff to sign a Facebook release or to provide log-in information. The court did compel the plaintiff to produce some information and documents because the Court found the following categories of information discoverable from the plaintiff’s Facebook account, from the date of accident to the present:

1) postings by Farley that refer or relate to the accident in question;
2) postings that refer or relate to emotional distress that Farley alleges he suffered as a result of the accident and any treatment that he received therefor;
3) postings or photographs that refer or relate to alternative potential emotional stressors or that are inconsistent with the mental injuries he alleges here;
4) postings that refer or relate to physical injuries that Farley alleges he sustained as a result of the accident and any treatment that he received therefor;
5) postings that refer or relate to other, unrelated physical injuries suffered or sustained by Farley; and
6) postings or photograph that reflect physical capabilities that are inconsistent with the injuries that Farley allegedly suffered as a result of the accident.

 

The Farley court directed the plaintiff’s postings be made immediately available to plaintiff’s counsel for review for plaitniff’s counsel, not the plaintiff himself, to determine whether the Facebook postings fit into one or more of the categories outlined by the court. The court went on to say this is not particularly a complicated or unusual personal injury case and accordingly the limits placed on the social networking sites ("SNS") discovery was appropriate. This case also cites authorities from other jurisdictions:

 

Boudwin v. General Ins. Co. OfAmerica

In Boudwin v. General Ins. Co. OfAmerica. 2011 WL 4433578 (La. App. 1 Cir. 9/14/2011). Plaintiffs' Facebook pages were used to show routine physical activities. Entries were made regarding running or jogging, P90X, working out, exercising, and playing sports.

Mouton v. Old Republic Ins. Co.

In Mouton v. Old Republic Ins. Co., 2011-458 (La. App. 3 Cir. 10/5/11), 74 So. 3d 1245, 1248 writ denied, 2011-2490 (La. 2/3/12), 79 So. 3d 1028, the court of appeal held the trial court did not commit error for allowing testimony about a Facebook page despite the defense’s failure to list the Facebook page as an exhibit on their exhibit list, because the plaintiff failed to object to its admission at trial. Oddly, the court of appeal found the plaintiff objected to introduction of the Facebook page into evidence. That objection was sustained.

 

This ruling is somewhat confusing. What appears to have happened was the defense attempted to introduce the Facebook page into evidence but the plaintiff objected. The trial court sustained the objection, but the court of appeal opinion does not state why. It could very well have been because the defense failed to list the Facebook page as an exhibit on their exhibit list.

I assume the defense then elicited testimony about the Facebook page, but the plaintiff did not object. The court allowed the testimony, but did not allow introduction of the Facebook page into evidence. This case stands for the proposition that if you don’t put an exhibit on the exhibit list, you run the risk of not being allowed to introduce it into evidence. It does not say that Facebook materials are inadmissible.

 

Conclusion

The Farley decision is very recent. It is unknown whether courts will adopt the new standard that limits discovery of Facebook material to pictures and postings directly associated with or contrary to the injury claimed by the plaintiff. Additionally, the time period of the information requested may be limited.