Limited Discovery of Facebook Allowed in Harassment Case
The Legal Intelligencer
August 12, 2010
image: Caroline Fong
It is a fair bet that many of those reading The Legal Intelligencer have neither a Facebook page nor a MySpace account -- although when our children reach a certain age, they can certainly tell us about them. But electronic discovery is well upon us, and employment litigation is at the forefront of issues involving social networking sites.
A recent discovery order in the case of EEOC v. Simply Storage Management in the U.S. District Court for the Southern District of Indiana discussed how much information from such sites is discoverable to an employer defending an employment discrimination claim.
DISCOVERY SOUGHT
According to the opinion, Joanie Zupan and Tara Strahl claimed that they were subjected to sexual harassment during their employment with Simply Storage. In September 2009, the Equal Employment Opportunity Commission, or EEOC, filed a complaint on their behalf and, after a round of preliminary motions, discovery ensued.
Simply Storage's request for production of documents included requests for "all photographs or videos posted by [Zupan or Strahl] or anyone on [their] behalf on Facebook or MySpace [from the beginning of their employment to the present]." Further, Simply Storage requested all "updates, messages, wall comments, causes joined ... activity streams ... and applications [including ... the 'Naughty Application']" for the same time period.
The EEOC, not surprisingly, objected to the production of all social network content -- and, in a protective order, to any deposition questioning along these lines -- claiming that the requests were overly broad, harassing, not relevant, and infringed on the claimant's privacy.
Simply Storage countered that the requests were proper because the EEOC had placed the "emotional health" of the women at issue, beyond that typically encountered in "garden variety emotional distress claims." Specifically, the EEOC had responded to prior discovery regarding damages by claiming that Strahl had sought "medical treatment" for anxiety stemming from the alleged sexual harassment and that Zupan had become "depressed and suffers from post traumatic stress disorder" based upon the same behavior.
In briefing on the issue, the EEOC withdrew its blanket objection to the requested information and, instead, argued that "production should be limited to content that directly addresses or comments on matters alleged in the complaint." Simply Storage countered that the nature of the injuries alleged implicated all of their social network communications.
Initially, the court found that the fact that the claimants may have "locked" their information or profiles from public access did not serve as a legitimate basis for shielding the communications from discovery. Any particular claim of oppression or burden could be addressed with particularity in an appropriate protective order.
LIMITATIONS RECOGNIZED
Next, the court rejected Simply Storage's assertion that all of the content on the claimants' sites was discoverable. Rather, the court held that "it must be the substance of the communication that determines relevance." The court relied upon the 2006 Southern District of New York case Rozell v. Ross-Holst, which recognized that, while "anything that a person says or does might in some theoretical sense be reflective of her emotional state ... that is hardly justification for requiring productions of every thought she may have reduced to writing ... [or] the deposition of everyone she may have talked to."
The court then found the EEOC's proposed limitation too narrow. That is, "it is reasonable to expect severe emotional or mental injury to manifest itself in some [social network] content, [including when the distress occurred and the degree of distress]." Producing only content specifically related to the allegations in the complaint would likely result only in communications supportive of the claim. The court noted that such a restriction "might not ... yield information inconsistent with the claimant's allegations of injury or about other potential causes of injury."
POSTINGS REVEALING EMOTIONS
The court determined that Simply Storage was, therefore, entitled to discover any "profiles, postings or messages ... and [applications from the date of the first allegedly harassing act] through the present 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 a significant emotion, feeling or mental state." Similarly, the claimants were required to produce any pictures that they had posted on their sites, as the "claimants' appearance may reveal [their] emotional or mental status."
In responding to the request, the commission was specifically instructed by the court to err on the side of production, and Simply Storage was permitted to inquire of the claimants as to the scope of what has, and has not, been produced.
BROAD IMPLICATIONS
While the court specifically relied upon the claimants' assertion of "severe emotional distress" as the justification for allowing this discovery, it appears as though the court defined "severity" as the claimants having sought treatment for their alleged emotional injuries. However, this type of claim is not as extraordinary as the court appears to believe.
In any type of harassment claim, a plaintiff or claimant will likely be seeking emotional distress damages. If the alleged distress is severe enough to warrant serious consideration in damages -- or during settlement discussions -- the plaintiff will need to have some medical evidence supporting the claim. This will lead to some type of diagnosis -- anxiety, sleeplessness, PTSD, etc. -- that will raise the claim above "garden variety emotional distress."
Similar discovery might be appropriate in the harassment context if the issues of whether the allegedly offensive behavior was "welcome" or whether the plaintiff was subjectively offended are in dispute. That is, the sexual nature of a plaintiff's postings would seem to be relevant if he or she claims to have been offended by such comments in the workplace. This particular issue is neither raised nor discussed in the Simply Storage case, but the issue is sure to arise as the boundaries of social network discovery are further explored by the courts.
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