In a Discovery Request, Can a Party Gain Autonomous Access to the Opposing Party’s Social Media Accounts? Not Necessarily, a Party Is Only Entitled To Discovery To the Extent That the Information Is Relevant To Litigation

In a Discovery Request, Can a Party Gain Autonomous Access to the Opposing Party’s Social Media Accounts? Not Necessarily, a Party Is Only Entitled To Discovery To the Extent That the Information Is Relevant To Litigation

This case involves an employment discrimination claim that the plaintiff, Anthony Smith, levied against his former employer, Hillshire Brands, under the Family Medical Leave Act (FMLA). The plaintiff was an employee of Hillshire Brands and in a letter dated August of 2013, he was given time off of work under the FMLA until February of 2014, but Smith’s employment was terminated in September of 2013. 

During the course of this suit, both parties became engaged in various discovery disputes, one of which is the subject of this order dated June 20, 2014. The defendant served the plaintiff with documents requests, which would show the plaintiff’s activity on social media websites. The defendant’s request was,

Request No. 15: All documents constituting or relating in any way to any posting, blog, or other statement you made on or through any social networking website, including but not limited to Facebook.com, MySpace.com, Twitter.com, Orkut.com, that references or mentions in any way Hillshire and/or the matters referenced in your Complaint. Request

No. 18: Electronic copies of your complete profile on Facebook, MySpace, and Twitter (including all updates, changes, or modifications to your profile) and all status updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, and comments for the period from January 1, 2013, to present. To the extent electronic copies are not available, please provide these documents in hard copy form.

In response to these document requests, the plaintiff refused to provide his complete profile on social media websites because most of the information had no relevance to the defendant’s claims or defenses in this case.

So, the defense filed a motion to compel and stated the social media profile could offer a diary of the plaintiff’s activities, thoughts, mental condition, and actions, which relate to the plaintiff’s claims for emotional distress. Also, the defendant claims the information stored in the plaintiff’s profile may provide insight as to whether the plaintiff abused his FMLA leave, which was cited as the reason for his termination.

The legal standard for discovery requires that any information sought to be relevant. This seems ambiguous, but luckily, the Federal Rules of Evidence provide further details regarding what is relevant. Rule 26 requires any document requests to be tailored so that it appears to be reasonably calculated to lead to the discovery of admissible evidence. The court here states that allowing the defendant unfettered access to the social media profiles of the plaintiff would allow the defense to case “too wide a net for relevant information.”

The court here cites another case, Ogden v. All-Star Career School, 2014 WL 1646934, at *4 (D. Kan. 2014), which stated,

Ordering plaintiff to permit access to or produce complete copies of his social networking accounts would permit defendant to cast too wide a net and sanction an inquiry into scores of quasi-personal information that would be irrelevant and non-discoverable. Defendant is no more entitled to such unfettered access to plaintiff’s personal email and social networking communications than it is to rummage through the desk drawers and closets in plaintiff’s home.

In addition to the problem of casting “too wide a net,” the court also stated that social network activity might not be as relevant to an emotional distress claim as one might think. The reason is that a severely depressed person may have a good day or several good days and choose to post about those days and avoid posting about moods more reflective of his or her actual emotional state.

As a result of this analysis the court granted the defendant’s document request as it relates to only information that references the plaintiff’s emotional state and potential reasons for that emotional state.

Daniel received a B.A. in Criminology and Criminal Justice from The University of Maryland. He will receive his J.D. from Seton Hall University School of Law in 2015. Presently Daniel is serving as counsel in the Juvenile Justice Clinic. After graduation Daniel will clerk for a trial judge in the Superior Court of New Jersey. 

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Comments (2):

  1. In recent years I’ve noticed that more and more firms are telling current and potential clients that they should refrain from writing or posting anything about their case on the internet, with specific reference to social media. Some firms have even made it a required part of their retainer agreement. As the law evolves in accordance with technology, does this sort of advice/requirement seem as though it may become commonplace within the next 5-10 years? I’d be interested to hear any opinions others have on this matter.

  2. If only information on the social media sites relating to the Plaintiff’s emotional state was deemed relevant, unnecessary litigation will ensue. It seems as though this ploy was designed to increase the cost of litigation. Most information available on a company’s Facebook is readily accessible by the public.

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