Court Denies Complete Access to Opposing Party’s Facebook Account but Allows a Tailored Request Limited to Specific References of Emotional Distress.

When Are Parties Entitled to “Sample” Private Social Media Activity to Uncover Probative Evidence?

In this case, the plaintiff sued her former employer for violating the Fair Labor Standards Act by requiring her to work forty-eight hours a week without an uninterrupted lunch break, and only compensated her for forty hours per week. In order to rebut these allegations, the defendants requested, among other things, the plaintiff’s Facebook account information during the relevant time period. When the plaintiff refused to comply with the request, the defendant sought relief from the court for an order compelling her to produce the following discovery:

Using the ‘Download Your Information,’ feature or other comparable technique, produce a complete history of your Facebook account, including without limitation all wall posts, status updates, pictures, messages, communications to or from your account, and any other content displayed at any time on your Facebook account.

The defendants argued that this information was necessary for two reasons: 1) to prove the plaintiff was engaged in non-work-related activities during the time she claimed to be working, and 2) to disprove the plaintiff’s emotional distress claim. As to the first purpose, the court held that the defendants were not able to support their position that a broad inspection of the plaintiff’s social media account was reasonably calculated to lead to the discovery of evidence demonstrating where the plaintiff was during the hours she claimed to be working. “Defendants have not made a sufficient predicate showing that this broad class of material is reasonably calculated to lead to the discovery of evidence establishing Plaintiff’s whereabouts during the Relevant Time Period.”

However, the court agreed that the discovery of limited social media information was permissible to uncover activity relating to the plaintiff’s emotional distress and any potential alternative causes of that distress. Therefore, the court order the plaintiff to produce “a sampling of Plaintiff’s Facebook activity for the period November 2011 to November 2013, limited to any specific references to the emotional distress Plaintiff claims she suffered in the Complaint, and any treatment she received in connection therewith.” (internal quotations omitted).

The court also ordered the plaintiff to preserve all of her Facebook account information for the duration of the litigation because the defendants were permitted to request the rest of the plaintiff’s Facebook activity after reviewing the sampling if they discovered probative evidence.

Danielle is a third year student at Seton Hall University School of Law (Class of 2016). Prior to law school, she graduated magna cum laude from The College of New Jersey, where she earned her B.S. in Criminology with a minor in Arabic. After graduation, Danielle will clerk for a civil judge in the Superior Court of New Jersey.

Comments (1):

  1. Its confusing to me why the court found that a review of plaintiff’s Facebook activity would lead to the discovery of evidence as to her whereabouts was unsupported. Logically, it seems to be that given how frequently people use social media now-a-days, the MOST effective way to find out where someone was at a particular time and date is to check their social media. Perhaps in this case the defendants motion was not specific enough to only requesting social media data between the hours of 9-5 M-F.

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