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EmploymentProcedure and Evidence

Discoverability of Social Networking: Who Gets to See What You Tweet, Post, and Pin?

By May 10, 2013No Comments

Social Networking content remains in a constant state of flux with respect to its discoverability and introduction in litigation within Massachusetts.  Indeed, the law in this area, within the Commonwealth, is in flux and developing in a piecemeal case-by-case manner.  It is illustrative to turn to a couple of very recent out of state decisions that exhibit a clear divergence in legal analysis based on similar facts in understanding the competing issues at hand.   

Both of those cases build upon the Court’s analysis in EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. May 2010), where an Indiana court allowed a Defendant access to Social Networking content, but also placed some limitations on such discovery.  It is illuminating to examine two courts’ differing interpretations of the same case.

In Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566 (C.D. Cal. Sept. 7, 2012), a federal court in California reviewed an employment discrimination case, where the plaintiff claimed that she suffered severe mental and emotional distress as a result of the defendant’s alleged sex discrimination.  Id. Accordingly, defendant sought broad discovery of the content of plaintiff’s Facebook account, arguing that such content was likely relevant because, “in this day and age, many communications between friends and/or about an individual’s emotional state are communicated via social media.”  The requested discovery closely resembled the discovery requested in Simply Storage.  See Mailhoit, 285 F.R.D. at n. 4.

In Mailhoit, the California court acknowledged that the content of social networking sites may be discoverable, but noted that several courts have found that “the Federal Rules do not grant a requesting party ‘a generalized right to rummage at will through information that [the responding party] has limited from public view,’” and further concluded that “while a party may conduct discovery concerning another party’s emotional state, the discovery itself must still comply with the general principles underlying the Federal Rules of Civil Procedure that govern discovery.”  See Mailhoit, 285 F.R.D. at 571.

Relying on the Simply Storage decision (from Indiana), the Court in Mailhoit showed reservations about vague Facebook discovery requests.  Ultimately, the Mailhoit Court granted defendant’s request for social media, but limited it to only communications between Plaintiff and current or former Home Depot employees, and communications which referred to her employment at Home Depot or the lawsuit.

In Reid v. Ingerman Smith LLP, 2012 WL 6720572 (E.D.N.Y. Dec. 27, 2012), which is a sexual harassment lawsuit from a federal court in New York, the plaintiff sought a large amount of emotional distress damages for allegedly inappropriate treatment from her boss.  The defendant filed a motion to compel discovery concerning the plaintiff’s social media accounts.   The defendant argued that public postings on the plaintiff’s Facebook account contradicted her claim of mental anguish, and therefore any private postings and photographs might contain information relevant to the plaintiff’s state of mind.  The plaintiff argued that she had an expectation of privacy with respect to her social media accounts and that the court should not require her to produce private information.  While the court agreed that the plaintiff had some expectation of privacy, it explained that this expectation did not shield most communications from discovery with a reference to the aforementioned Simply Storage case, stating:

While plaintiff is correct that disclosure of her personal social media account may raise privacy concerns, such a consideration is more “germane to the question of whether requested discovery is burdensome or oppressive and whether it has been sought for a proper purpose” rather than to affording a “basis for shielding those communications from discovery.”

See Reid, 2012 WL 6720572 at *2.

            In the same way that social media networking is always evolving, so, too, is the law surrounding it.  Both potential plaintiffs and defendants need to be aware that social networking content may contain critical information relating to civil litigation, and therefore information should be posted with great care to any social networking sites, blogs, list-serves or other quasi-public on-line communities.