Generally, an insured should assume that everything posted on social media will 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. 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 posts. 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 media sites 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 sites 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 requests on the grounds that the requests were overly burdensome. 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 conduct a social media fishing expedition. These courts do not require the insurer to even establish that a reasonable basis exists to believe that the accounts contain 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.
You can reach Miami Insurance Claims Lawyer J.P. Gonzalez-Sirgo by dialing his direct number at (786) 272-5841, calling the main office at (305) 461-1095, or Toll Free at 1 (866) 71-CLAIM or email Attorney Gonzalez-Sirgo directly at [email protected].