Wyatt Employment Law Report

Court Allows Discovery of Social Networking Postings in Discrimination Case

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By Debra H. Dawahare 

The United States District Court for the Eastern District of Indiana has recently ruled that complainants in a discrimination case must produce information posted on their MySpace and Facebook pages, in response to the defendant company’s discovery requests.  

In Equal Employment Opportunity Commission v Simply Storage Mgmt. LLC, et.al., 2010 WL 3446105 (S.D. Ind. May 11, 2010), the EEOC objected to these discovery requests: 

REQUEST NO. 1:  All photographs or videos posted by [complainant] or anyone on her behalf on Facebook or MySpace from April 23, 2007 through the present.

REQUEST NO. 2:  Electronic copies of [complainant’s] complete profile on Facebook and MySpace (including all updates, changes or modifications to [complainant’s] profile) and all status, updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments, and applications (including but not limited to “How well do you know me” and the “Naughty Application”) for the period from April 23, 2007 to the present.  To the extent electronic copies are not available, please provide the documents in hard copy form.

The EEOC argued that the requests were overly broad, would impinge upon the complainants’ privacy, and would harass and embarrass the complainants. Simply Storage claimed that because the EEOC had placed the complainants’ mental and emotional states in issue by asserting that the sexual harassment the complainants had allegedly suffered had caused them “ongoing emotional distress…loss of enjoyment of life, anxiety, fear, bitterness, humiliation, embarrassment and inconvenience,” and that one of the complainants had become depressed and developed post-traumatic stress disorder. 

The court ruled that the complainants must respond to the requests, concluding that content posted on social networking sites is not immune from discovery just because it is “locked” or “private;”  that such content must be produced when relevant to a claim or defense in a case; and that while claims of depression, stress disorders and similar injuries do not automatically render all social networking communications discoverable, those that  “reveal, refer, or relate to any emotion, feeling, or mental state,” or that relate to “events that could reasonably be expected to produce a significant emotion, feeling, or mental state” are discoverable.  The court concluded that pictures of the complainants posted on their profile pages during the relevant period were also discoverable “because the context of the picture and the claimant’s appearance may reveal the claimant’s emotional or mental state.” 

Employers involved in litigation should make sure that their counsel investigate their adversaries’ social networking postings, and collect all such information as may be available through discovery requests.

Author: Kim Koratsky

Labor & employment lawyer with the Memphis, Tennessee office of Wyatt, Tarrant & Combs, LLP

Leave a reply. Please note that although this blog may be helpful in informing clients and others who have an interest in information privacy and security, it is not intended to be legal advice. The information on this blog also should not be relied upon to form an attorney-client relationship.

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