New Strategic Tool: Filing a Motion to Compel for Social Media Sign-In Information
Defense Digest, Vol. 25, No. 2, June 2019
By Thomas J. O’Malley, Esq.*
“May I please have your Social Security Number?”
“I don’t feel comfortable providing that information.”
“We need your Social Security Number.”
“I’m not going to give it to you.”
In this day and age, the above exchange is rather common. As most people know, giving someone your Social Security number is basically providing “the key to the kingdom.” As recently as 20 years ago, it was routine to share your Social Security number without consequence.
However, in today’s “social media age,” most people are, in some form or another, addicted to social media. People post their lives on their various social media accounts, whether it be Facebook, Instagram or LinkedIn. But can you imagine the reaction of someone sitting next to you on the train if you were to ask him for the user name and password for his Facebook account?
Yet, that is exactly what a Monroe County, Pennsylvania judge compelled a plaintiff to do. In Kelter v. Flannigan, No. 286-Civil-2017 (C.P. Monroe Co. Feb. 19, 2018 Williamson, J.), a motor vehicle case that was defended by Frank Baker of our Allentown office, the Honorable David J. Williamson of the Court of Common Pleas of Monroe County addressed the issue of the discoverability of a plaintiff’s access information to her Instagram account.
Ms. Kelter claimed the injuries she sustained in the motor vehicle accident precluded her from performing certain physical activities. Defense counsel then showed the plaintiff public-access Instagram posts from her account, which revealed her engaged in various physical activities after the accident, including shoveling snow and going to the gym. After refusing to provide her Instagram account access information, which would have allowed defense counsel access to her private Instagram posts, defense counsel filed a motion to compel the plaintiff to provide her access information.
In response to the defendant’s motion, the plaintiff insisted that all of her Instagram posts were open to public access and that she had made no private posts after the auto accident. The defendant argued that without the plaintiff’s access information, the defendant would have no way to determine whether there were relevant private posts on the plaintiff’s account; public posts that the plaintiff subsequently made private; or previously public posts that were later deleted. In fact, following her deposition, the plaintiff changed her public posts to private posts, precluding access to posts previously publicly available.
In compelling the plaintiff to provide her Instagram account access information, the court noted that there is very limited authority on the discoverability of a party’s social networking account in litigation. Generally, social networking accounts can be discoverable if it appears likely they contain information that could be relevant to the litigation. The court further noted that there can be no expectation of privacy on social media because the user is sharing information with others in a public or quasi-public domain. The key issue is the relevance of the information, pictures and topics contained in a party’s social media account.
In Kelter, the court opined that the information contained in the plaintiff’s social media account was relevant to the extent of her injuries and recovery following the accident. The court stated, “The fact that information was available on a public access basis for a period of time does not eliminate the need for full access to the account by the Defendant.” The court reasoned that the “plaintiff has chosen to interact and share her personal life with others through social media… . The fact that she changed her account to a private setting, rather than eliminate the account and her use of this social networking source, casts doubt on any assertion that there is nothing relevant in the account postings. Therefore, Plaintiff will be required to disclose her Instagram account log-in information to Defendant’s counsel.”
In light of the sweeping prevalence of social media today, it can be assumed that plaintiffs’ counsel generally advise their clients to avoid posting on social media during the pendency of litigation. However, social media can be addictive, and it may be difficult for some to refrain from posting. Accordingly, it is important to access, as soon as possible, the social media accounts of plaintiffs and the public profiles of other individuals in their social media network. Just be careful not to tip your hand while you are perusing a social media account by inadvertently “liking” a post. Strategically, consider the following:
- Determine whether there may be relevant information in a plaintiff’s social media account.
- Ask the plaintiff if his/her social media account is private or open to the public.
- Request the plaintiff’s social media account access information.
- File a motion to compel the plaintiff’s user name and password to social media accounts, setting forth the possible relevance of the information contained in those accounts.
*Tom is a shareholder in our Philadelphia, Pennsylvania office. He can be reached at 215.575.2657 or email@example.com.
Defense Digest, Vol. 25, No. 2, June 2019. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2019 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact firstname.lastname@example.org.