This is my new go-to social-media-discovery judicial opinion

January 8, 2013
By Eric B. Meyer on January 8, 2013 7:00 AM | | Comments

Thumbnail image for facebookprivacy.jpgI assure you that what inspired this post had nothing to do with the facts of the case; namely:

  1. the female plaintiff claiming that her female-lawyer boss groped her; or

  2. the plantiff's Facebook posts about pole-dancing and calling her breasts "milk factories".

That's all purely coincidental. Indeed, it sounds like something out of Costanza's desk drawer

Actually, I'm posting this to share a very well-reasoned social-media-discovery judicial opinion that is a big win for employers. You'll see what I mean after the jump...

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Here's the full setup:

The female plaintiff, a legal secretary, claimed that her female boss, an attorney, sexually assaulted and harassed her. Among the allegations is that the plaintiff's boss said to her, "Those things are HUGE," and then grabbed and squeezed her right breast. The plaintiff subsequently sued the attorney and her law firm, claiming to have suffered emotional pain and suffering.

At some point, the defendants find that the plaintiff has a Facebook account. The Facebook account is privacy protected; however, there are certain portions that are publicly accessible. Among the publicly-accessible portions is a picture of the plaintiff in a low-cut top below which she commented that her breasts were her "milk factories." Another post referred to her pole-dancing classes and, in another public comment, the plaintiff mentioned having to "freeze" her panties. 

According to the defendants, the plaintiff's posts did not comport with someone who had been emotionally scarred by alleged sexual harassment. Consequently, they demanded to see other private Facebook posts that were not publicly accessible. The plaintiff refused to produce them. So, the court had to intervene.

Public posts about your boobs and panties probably mean that some of your private Facebook posts will also bear on the outcome of the case.

I'm loving this opinion in Reid v. Ingerman Smith LLP.

For starters, the court immediately cleared the air by emphasizing that there is no dispute that social media information may be a source of relevant information that is discoverable.

And when it comes to claims for emotional distress, the court noted that any offline or online speech might in some theoretical sense be reflective of her emotional state. That's a HUGE -- bigger than the plaintiff's breasts, I'm sure -- net for an employer-defendant to cast without going on a total discovery fishing expedition, which courts will not allow.

So, when a plaintiff posts something on a publicly-accessible portion of her Facebook account that provides "probative evidence of her mental and emotional state, as well as reveal the extent of activities in which she engages...[her] private postings may likewise contain relevant information that may similarly be reflective of her emotional state." 

Consequently, it is fair to require a plaintiff to produce any information regarding her emotional state, even if that information would otherwise only be accessible by Facebook friends.

For, as the court noted, just because a Facebook user adjusts her privacy settings such that only certain Facebook friends can view her posts, there is no guarantee that the information will stay private. Indeed, the more Facebook friends she has, the more likely it is that one of them will share her "private" information with others. (As I tell my clients, once it goes online, assume that it's available for public consumption).

But even if the Facebook user had her adjusted her settings to "Fort Knox," her personal diary would still be discoverable as long as it contained information that is relevant to the claims or defenses of the case. It would be unfair to permit a plaintiff claiming emotional distress to block discovery of facts that may shed important light on whether any emotional distress actually was suffered.

Here's why you should be trying to get this information too.

As a defender of employers, I'm a big proponent of making social media a part of discovery. I'm not suggesting that what someone does in his/her private life makes that person any more or less receptive to sexual advances from co-workers and supervisors. (Just because I tell penis jokes to my friends on the weekend, doesn't mean I want my co-worker grabbing my junk).

However, when weighing the effect that potentially unlawful workplace behavior has on the plaintiff, it is fair to consider how the plaintiff presents online, where one has a tendency to share candid, unfiltered, in-the-moment snapshots, which may include displays of emotion. Any display of emotion, whether online or offline, could have a bearing on the plaintiff's claim for damages. And that's why I make a practice of asking for it.