Two New Decisions On Two Old Fronts – Part 2 of 2

On Tuesday, I posted about a recent development on the issue of Facebook firings, and how we can continue to develop the applicable standard for analyzing that issue as the decisions keep coming.    Today, I note the recent decision in Tompkins v. Detroit Metropolitan Airport, a case from the federal court in the Eastern District of Michigan, which addresses whether you can discover one’s private Facebook account information in the context of a lawsuit.

The decision should not be considered as just another case from another judge in another forum.   Rather, it is worthwhile to assimilate all of the decisions on this issue as well, and notice the emerging standards that will be applicable to your next lawsuit when this issue comes up.    True, Tompkins involves a slip and fall case, but the rule of law articulated is no less applicable to our employment law world. 

The defendant in Tompkins demanded that the plaintiff provide signed authorizations permitting the defendant to access plaintiff’s prior medical records and records from her Facebook account.    Plaintiff provided the medical authorizations (her physical and emotional state were clearly at issue), but refused to provide access to her private Facebook pages.    In ruling on the defendant’s motion to compel production, the court first reaffirmed what has become a starting premise in this area:  That even “private” profile information that is not available to the general public is not automatically shielded by any privilege or general privacy right.    Balancing that, however, is the premise on the other hand that a defendant “does not have a generalized right to rummage at will through information that plaintiff has limited from public view.”

That is the key, then.    Balancing.   And that is what the court in Tompkins did.   The court found that the defendant’s purported connection from what was on plaintiff’s public pages to what may be on her private pages, was tenuous at best:

“If the Plaintiff’s public Facebook page contained pictures of her playing golf or riding horseback, Defendant might have a stronger argument for delving into the nonpublic section of her account.  But based on what has been provided to this Court, Defendant has not made a sufficient predicate showing that the material it seeks is reasonably calculated to lead to the discovery of admissible evidence.”

Employer Take Away:   What should you as an employer take away from this development?   

The theme is important, so it’s worth repeating.   You should not do, just to do.   In other words, just as you should no longer be trigger happy with adverse employment actions taken without a plan, you (and your attorney) also should not necessarily turn a request for social media account information into a boilerplate, form request in litigation.   

There should be a strategy and a plan.   Figure out precisely what you need, and why you need it, and do sufficient due diligence with the publicly-available information so that you can make the best case to the judge as to why you absolutely need access to what you are seeking.    You may not get a second bite of the apple.

About The Author

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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