Social Media and Insurance Claims Part II: Diverging Views Regarding Discovery of Social Media Posts

In Part I of this blog, we discussed some of the risks associated with using social media sites when you are in the process of negotiating the settlement of a claim with an insurance carrier.  Generally, an insured should assume that everything posted on a Facebook page might become available to an insurance company if the policyholder becomes involved in litigation.  Courts are still evolving their analysis in terms of the applicable scope of discovery of posts in the private areas of social media sites.  While Part I of this blog post focused on the potential consequences of posting on social media websites while involved in litigation, this post focuses on the three general approaches taken by courts in discovery disputes in insurance cases.

The Keller Relevance Approach

In Keller v. National Farmers Union Property and Casualty Co., a federal court from Montana acknowledged that policyholders were entitled to some level of privacy protection of their social media postings.  In Keller, an insured sued its auto insurance company for coverage of injuries sustained in a collision.  The insurance company made a discovery request for “a full printout of all social media pages and all photographs posted thereon, including but not limited to Facebook, Myspace, Twitter, LinkedIn, LiveJournal, Tagged, Meetup, MyLive, Instagram and MeetMe.”

The insurance carrier contended that the broad discovery request should be granted because information on social networking websites might be relevant to the nature and extent of the physical and mental injuries suffered by the insured.  The insurance carrier contended that information and pictures on the policyholder’s social media website might compromise or contradict the insured’s injury claims.

The insurer even sought social media information of the injured driver’s mother, who also was a policyholder, even though she was not in the vehicle at the time of the accident.  The insured opposed the discovery request on the grounds that it was overly burdensome.  While the U.S. District Court did not deny that the content of a social media site is protected from discovery merely because the information is deemed “private,” the court indicated that an insurer should be given permission to “rummage” though the social media content to which an insured has restricted public access. The court required that the insurer make a “threshold” showing that the information would undermine the insured’s claim.

The Keller court found that the insurer had failed to make a threshold showing that content posted in the public areas of the policyholders’ social media pages provided any information that compromised their claim.  The court concluded that without this initial showing, the insurer was “not entitled to delve carte blanche into the nonpublic section of the Plaintiffs’ social networking accounts.”

The Kitchen Sink Approach

Other courts have taken a more expansive approach when granting access to information posted on a policyholder’s social media page.  A Florida federal court in Davenport v. State Farm Mut. Auto Ins. Co. granted an insurer’s motion to compel discovery of such material without any prior showing that the request would lead to relevant information.

These courts have essentially permitted insurance companies to literally conduct a fishing expedition through the information on an insured’s social media site.  These courts do not require the insurer to even establish that a reasonable basis exists to believe that the webpage contains relevant information.  The court in Davenport held that the insured had to produce any post-accident photos regardless of who posted them because the policyholder’s physical condition was at-issue since she was making injury claims.  The court observed that the relevance of the material outweighed any concerns about privacy or the burden of producing the information.

The Hybrid Approach

Some courts take a hybrid approach that limits access to pictures and information in private areas of social media sites without prior evidence that the social media site has relevant information.  These approaches might limit accessible information or authorize in camera review by the judge before releasing information to the insurer.

If you have questions about Florida insurance claims, you are welcome to contact my Miami insurance claims dispute law firm.  My law firm represents policyholders in claims disputes in Miami and throughout Florida.  The Law Firm of J.P. Gonzalez-Sirgo, P.A. offers free consultations and case evaluations.  No Recovery, No Lawyer Fees.  Call 305-461-1095 or Toll Free 1-866-71-CLAIM.

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