Many times on this blog (e.g., here, here, and here), I've discussed the discovery of a plaintiff's social media information in pending litigation. More often than not, these issues arise in personal injury actions where the defendant believes that the plaintiff's injury isn't as a severe as he claims it to be. So, it seeks access to plaintiff's Facebook information where it believes it will find pictures of the plaintiff boozing or frolicking or what-have-you.
Although less common in employment discrimination cases, from time-to-time, social media discovery issues do crop up.
The seminal case is EEOC v. Simply Storage, Mgmt., in which the defendant sought discovery of social media communication relating to both the Complaint and, more specifically, plaintiff's claims of emotional distress. There, the court allowed discovery of both:
It is reasonable to expect severe emotional or mental injury to manifest itself in some [social media] content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress. Further, information that evidences other stressors that could have produced the alleged emotional distress is also relevant. In essence, the court recognized that social media can provide information inconsistent with a plaintiffs allegation that defendant's conduct caused her emotional distress, whether by revealing alternate sources of that emotional distress or undermining plaintiff's allegations of the severity of that distress.
Late last month, in Robinson v. Jones Lang LaSalle Americas, Inc., a federal court in Oregon adopted the reasoning of Simply Storage and applied it in the employment discrimination case before it where the plaintiff claimed emotional-distress damages and the defendant made literally the same document request as in Simply Storage.
[Editor's note: I'd like to think that the defendant did so based on this article. Then again, I'd like to think that Bar Rafaeli simply lost my phone number, and that restraining order doesn't exist.]
The Oregon Court intelligently recognized that discovery of social media information is the same as getting text messages and email; just another form of electronic communication. As long as the document request seeks "any matter, not privileged, that is relevant to the claim or defense of any party," it is discoverable (subject to objections based on burden of prodution or stuff like that).
Thus, as in Simply Storage, Ms. Jones was required to produce online social media communications, including profiles, postings, messages, status updates, wall comments, causes joined, groups joined, activity streams, applications, blog entries, photographs, or media clips, as well as third-party online social media communications that place plaintiff's own communications in context from July 1, 2008 to the present that reveal, refer, or relate to: (a) any significant emotion, feeling, or mental state allegedly caused by defendant's conduct; or (b) events or communications that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant's conduct.
Lexis.com subscribers can access the Lexis enhanced versions of the EEOC v. Simply Storage Mgmt., 270 F.R.D. 430 (S.D. Ind. 2010) and Robinson v. Jones Lang LaSalle Ams., Inc., 2012 U.S. Dist. LEXIS 123883 (D. Or. Aug. 29, 2012) decisions with summaries, headnotes, and Shepard's.
This article was originally published on Eric B. Meyer's blog, The Employer Handbook.
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