You can’t get Facebook login info based on a smiling profile pic

I got this as a Google Alert on Monday. The case is Davids v. Novartis Pharmaceuticals Corp. Allow me to set the stage for you.

• • Plaintiff sues, claiming ongoing suffering from osteonecrosis of the jaw (if you click the link, don’t look at the picture on the right. Ewwwww)

 

• • Defendant corporation realizes that plaintiff has a Facebook account and serves a request for production of Facebook documents.

 

• • Plaintiff produces only those documents that are available publicly (i.e., those to which access is not otherwise restricted through Facebook privacy controls)

 

• Not satisfied with the production, defendant moves to compel plaintiff to turn over her Facebook login information

The basis for the motion?

Defendant argues that Plaintiff’s log-in information is discoverable because statements or pictures on her Facebook page relate directly to her claim of ongoing suffering from osteonecrosis of the jaw. Defendant’s claim is predicated on Ms. Davids’ profile picture, in which Defendant claims she is smiling. Defendant did not inquire about Ms. Davids’ social networking activity at her deposition. (my emphasis)

Sounds like someone didn’t read my chapter in Think Before You Click. Comparing the situation here to cases from PA,  NY, and another from NY the court denied the motion to compel:

 

Defendant’s argument that Plaintiff smiling in her profile picture on Facebook satisfies its burden in this motion to compel is without merit. Even if Plaintiff is smiling in her profile picture, which is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff’s account.

 

If only the Defendant had laid a better foundation with additional discovery as to the overall scope of what the plaintiff had in her Facebook account, this could have ended differently.