In an ADA employment discrimination case, a federal court recently denied a defendant’s request to compel the plaintiff to provide authorizations for all of her social media accounts, but still ordered the production of any social media postings relevant to the plaintiff’s claimed emotional distress damages. See Giacchetto-v-Patchogue-MedfordUnion, No. CV 11-6323 (E.D.N.Y. May 6, 2013). The court followed the approach taken in Howell v. Buckeye Ranch, Inc., No. 11-CV-1014 (S.D. Ohio Oct. 2012), and applied a “traditional relevance analysis,” stating “[t]he fact that Defendant is seeking social networking information as opposed to traditional discovery materials does not change the Court’s analysis.” Giacchetto, slip op. at 3.
In reaching its result, the court rejected the approach taken by some federal courts that the private section of a Facebook account is discoverable only if the party seeking the information can make a threshold evidentiary showing that a plaintiff’s public Facebook profile contains information that undermines her claims. According to the court, this approach can be too broad because “a plaintiff should not be required to turn over the private section of his or her Facebook profile (which may or may not contain relevant information) merely because the public section undermines the plaintiff’s claims.” Id. at 3 n. 1. This approach also can be too narrow because “a plaintiff should be required to review the private section and produce any relevant information, regardless of what is reflected in the public section.” Id. “The Federal Rules of Civil Procedure do not require a party to prove the existence of relevant material before requesting it.” Id.
Postings About the Plaintiff’s Emotional and Psychological Well-Being
The court applied a traditional relevance analysis under Rule 26(b)(1) to the three categories of information sought by the defendant:
- postings about the plaintiff’s emotional and psychological well-being;
- postings about the plaintiff’s physical damages; and
- any accounts of the events alleged in the plaintiff’s amended complaint.
The court observed that there have been varying conclusions regarding the relevance of social media postings in cases involving claims for emotional distress damages. After considering these views, the court ruled that a plaintiff’s entire social media account is not necessarily relevant simply because she is seeking emotional damages and that a more limited approach should be taken regarding the discovery of these materials:
The fact that an individual may express some degree of joy, happiness, or sociability on certain occasions sheds little light on the issue of whether he or she is actually suffering emotional distress. If the Court were to allow broad discovery of Plaintiff’s social networking postings as part of the emotional distress inquiry, then there would be no principled reason to prevent discovery into every other personal communication the Plaintiff had or sent since [the] alleged incident.
* * *
Based on the foregoing information, the Court concludes that Plaintiff’s routine status updates and/or communications on social networking sites are not, as a general matter, relevant to her claim for emotional distress damages, nor are such communications likely to lead to the discovery of admissible evidence regarding the same. The Court does find, however, that certain limited social networking postings should be produced.
Id. at 5, 7.
Based on this analysis, the court ordered the production of postings that specifically referred to the emotional distress the plaintiff claimed she suffered or treatment she received in connection with the events alleged in her amended complaint. The court further ordered the production of any postings that referred to “alternative potential stressors” because the plaintiff “opened the door to discovery into other potential sources/causes of that distress.” Id. at 7.
Postings About Physical Damages
The court drew a distinction between the relevance of social media information to claims for emotional distress damages and claims for physical damages. Here, the court reasoned that while the relationship of a posting about someone’s mood at a given point in time may have a tenuous relationship to a claim for emotional damages, “[p]ostings or photographs on social networking websites that reflect physical capabilities inconsistent with a plaintiff’s claimed injury are relevant.” Id. at 7.
Because it was unclear what physical harm the plaintiff was alleging, the court ordered her to confirm whether she was pursuing relief for physical damages and specify the claimed harm. At that time, the court would address the scope of social media discovery as it applied to physical damages.
Postings About Events Alleged in the Amended Complaint
The court ruled that any social media postings referring or relating to any of the events alleged in the amended complaint were relevant and must be produced.
Method of Production
The court also addressed the method of producing information from the plaintiff’s social media accounts. The defendant had sought authorizations for the release of records from the plaintiff’s accounts and presumably intended to subpoena the companies hosting the accounts.
The court did not see the basis for having the defendant go through the social media service providers when the plaintiff and her counsel had access to the accounts. Accordingly, the court ordered the plaintiff’s counsel — and not the plaintiff — to review the plaintiff’s social networking postings for relevance and produce any relevant material, “keeping in mind the broad scope of discovery contemplated under Rule 26.” Id. at 10. The court did not address the form in which the postings should be produced.
As recently observed in a post on Bow Tie Law’s Blog and in one of our previous posts, federal courts generally will not grant a defendant a generalized right to rummage at will through social media information that a plaintiff has limited from public view. There are still varying views by courts, however, regarding when the private section of a plaintiff’s social media account becomes discoverable and the extent to which it becomes discoverable, particularly when the plaintiff claims emotional damages.
In Giacchetto, the court joined other courts in concluding that it should not matter whether social media information is posted in a party’s public or private section to determine whether the information is relevant and discoverable under Rule 26. Just like with other forms of ESI, the focus should be on what kinds of postings are relevant to the parties’ claims and defenses in the case based on their content and general discovery principles. Moreover, it is up to a party and the party’s counsel in the first instance to review the postings to determine which ones are relevant and must be produced.