Litigation

Court Compels Production of Relevant Content from Social Networking Sites

By K&L Gates

EEOC v. Simply Storage Mgmt., LLC, No. 1:09-cv-1223-WTL-DML (S.D. Ind. May 11, 2010)

The EEOC, on behalf of two claimants, filed claims alleging sexual harassment.  In the course of discovery, defendant sought production of claimants' internet social networking site ('SNS') profiles and other communications from claimants' Facebook and MySpace.com accounts.  Plaintiff resisted.  Following its discussion of the 'General Principles Applicable to Discovery of SNS' and the proper scope of discovery in the present case, the court determined that certain content was relevant and ordered plaintiff to produce the relevant information, subject to the guidelines identified by the court.

Defendant sought production of all SNS content on claimants' online profiles.  Plaintiff objected, arguing the requests were 'overbroad, not relevant, unduly burdensome' and would improperly infringe upon claimants' privacy and cause embarrassment.  Defendant claimed the information was proper where plaintiff placed the emotional health of the claimants at issue 'beyond that typically encountered with ‘garden variety emotional distress claims'' and that 'the nature of the injuries…alleged implicates all of [claimants'] social communications (i.e., all their Facebook and MySpace content).'

Addressing first the discovery of SNS generally, the court acknowledged that the '[d]iscovery of SNS requires the application of basic discovery principles in a novel context' but stated that the true nature of the challenge before it was to 'define appropriately broad limits – but limits nevertheless – on the discoverability of social communications in light of a subject as amorphous as emotional and mental health and to do so in a way that provides meaningful direction to the parties.' Accordingly, the court determined that the claimants' expectation and intent that their SNS communications would be maintained as private was not a legitimate basis for shielding discovery; that SNS content must be produced when relevant to the claim or defense in a case; and that the proper scope of discovery was wider than 'communications that directly reference the matters alleged', the scope advocated by the EEOC.  Specifically, the court reasoned that '[i]t is reasonable to expect severe emotional or mental injury to manifest itself in some SNS content, and an examination of that content might reveal whether onset occurred, when, and the degree of stress.'

As to the present case, the court determined that the proper scope of relevance was 'any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS applications for claimants… that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce significant emotion, feeling, or mental state.'  The court also required the production of third-party communications to the claimants 'if they place these claimants' own communications in context' and the production of photographs of the claimants 'because the context of the picture and the claimants' appearance may reveal the claimant's emotional or mental status.'  Pictures depicting someone other than the claimants were acknowledged as 'unlikely to fall within the definition set out above.'

Once again addressing privacy concerns, the court acknowledged the possibility of embarrassment to the claimants but reasoned that 'this is the inevitable result of alleging these sorts of injuries'.  The court further reasoned that 'this concern is outweighed by the fact that the production here would be of information claimants have already shared…' and noted another judge's observation that 'Facebook is not used as a means by which account holders carry on monologues with themselves.'

A copy of the full opinion is available here.

Full post as published by eDiscovery Law on August 13, 2010 (boomark / email).