The discovery of social media content is a hot-button issue that we’ve covered at length in the past, but an Indiana case from earlier this month adds a new wrinkle that we’ve not previously discussed. Sure, we’re aware that stuff that you post on your Facebook page may well be considered relevant, and depending on the court, may be compelled into production. But what about content on other people’s profiles in which you are tagged? The case is Higgins v. Koch Development Corporation, in which plaintiffs were enjoying a day out at defendant’s theme park (Holiday World & Splashin’ Safari in – oh yes – Santa Claus, IN), when they suffered serious injuries while riding the ‘Bahari River’ attraction. They allege that a park employee was negligent and turned on an electric breaker at the wrong time, causing acid and bleach to be sprayed onto plaintiffs.

Here’s how social media plays into the litigation:

On April 29, 2013, [plaintiffs] Sarah and Rachel were deposed and testified that they maintained Facebook pages. Koch requested access to the content, and Sarah and Rachel… preserve[d] their Facebook data in electronic format. Immediately thereafter, Koch served on Sarah and Rachel Defendant’s Second Request for Production, requesting their Facebook information. Sarah and Rachel objected, claiming that the Request violates their privacy, since their respective pages are set up so that only the people they choose could view their profiles. They also claimed that the privacy of non-parties was violated because photographs and information uploaded by non-parties and published on Sarah and Rachel’s pages, through a process known as “tagging,” would be discovered. Sarah and Rachel also objected on more traditional grounds, claiming that the request was “overly broad, vague and ambiguous, and not limited in time and scope . . . irrelevant, unrelated, and not reasonably calculated to lead to the discovery of admissible evidence.”

(Emphasis added; internal citations omitted)

First of all, the court easily finds that the social media in question is relevant to the proceedings. Rachel claims “that she can no longer swim and jog and that her life is impacted by temperature changes and odors”, while Sarah alleges that “she cannot “participate in or enjoy her son’s sporting events . . . use certain cleaning products or enjoy perfumes or candles or other strong odors . . . [and] heat and humidity affect her breathing and she can no longer work in her yard.” The court agrees with Koch’s argument that the:

Facebook content may reveal relevant information as to the extent their injuries have impacted their “enjoyment of life, ability to engage in outdoor activities, and employment,” along with their “claims regarding permanent injuries, lack of pre-existing symptoms, and impairment of future earnings capacity.”

So, one objection down. Next, we get to privacy. First plaintiffs argue that, since they keep their Facebook profiles very private, they have a high expectation of privacy, which would be violated with a motion to compel. The court disagrees: ”they cite no cases supporting the proposition that setting a Facebook profile to “private” entitles a person to a greater expectation of privacy or can act as a shield to discovery.” Indeed, it’s noted that Koch took adequate steps to protect plaintiffs’ privacy and minimize the intrusion.

Next, we get to the as-yet unexplored stuff: what about the privacy rights of third parties? Plaintiffs argued that the request for production “violates the privacy of their Facebook friends who have posted on their “walls” and “tagged” them in posts or other pictures”, but the court is equally unconvinced. The primary threshold again is relevance, and that has already been established. The court cites another case, Davenport v. State Farm Mut. Auto. Ins. Co.:

The [Davenport] court also held that once the plaintiff was tagged in the photos, they became in the plaintiff’s “possession, custody, or control.” … This is consistent with Facebook’s privacy policy, which states that all posting is done at one’s own risk... The court finds Davenport instructive and concludes that these non-parties limited any expectation of privacy they had when they tagged Rachel or Sarah. Therefore, Rachel and Sarah’s alternative request to exclude any tagged photos is denied.

On the matter of overbreadth, the court sides with plaintiffs a little, and issues a date range for production. The main thing to take away from this case, though, is the fact that it’s not only the content that you post online that can be used against you, but also things that other people add to their profiles and tag you in.