How much social media discovery can you get from an employee who sues you for discrimination?

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Ibrahim.ID, CC BY-SA 4.0, via Wikimedia Commons

It depends. (Sorry).

But, for added context, I love this quote from a recent Maryland federal court opinion:

[There are] complexities in relying on a party’s social media postings as an unvarnished chronicle of their lives or a contemporaneous journal of their true state of health and well-being. To be sure, impeaching a plaintiff claiming an inability to walk with a video they posted undertaking the latest Tik Tok™ challenge may simply be the 21st century version of the ubiquitous surveillance video surreptitiously captured by an insurance investigator. And, given the tendency of many to “overshare,” documenting everything from their breakfast to their favorite Marvel™ villain, one could certainly justify a reasonable query into whether a party ever posted about the facts and witnesses underlying the lawsuit (or the lawsuit itself).

This post focuses on situations in which an employee who sues for discrimination seeks “garden variety” emotional distress damages.

Back in the day, you could get away with asking for all social media postings “that reveal, refer or relate to any emotion, feeling, or mental state of the plaintiff, as well as communications by or from the plaintiff that reveal or refer or relate to events that could reasonably be expected to produce a significant emotion, feeling or mental state.”

I should know. I’ve requested those documents many times.

But today’s judges are savvier about social media. There are some guardrails now.

Basic discovery practice dictates that the information sought be proportional to the needs of the case. Compared to cases in which plaintiffs claim to have suffered severe physical or mental injuries where social media posts warrant stricter scrutiny, with allegations of “garden variety” harm, there’s little value in a Facebook post of the plaintiff smiling at a close friend’s wedding. As the court noted, “[emotions are] exacerbated on social media where there can be a tendency to curate a certain image that might understate or overstate one’s true emotional state.”

What’s fair game then? Social media activity reflecting serious, nontransient emotional distress, including any such distress that a plaintiff claims to have suffered in connection with the incident alleged in the civil action. Examples would include references to diagnosable conditions, visits to professionals for treatment of such distress, treatment regimens, related conversations, the death of a loved one, marital difficulties, intractable financial difficulties, loss of employment, a serious illness or trauma, legal problems, and the like.

Beyond that, fuggedaboudit — unless the defendant-employer can demonstrate a particular need for more information.

Is the juice from a social media document request worth the squeeze? I’d say so. Generally, there are no caps on the number of document requests that parties can propound. So, there’s little harm in asking. Certainly, anything directly related to the underlying lawsuit is fair game.

But, will you find the smoking gun to eviscerate the plaintiff’s claim for damages? Well, considering that “garden variety” damages don’t amount to much in the first place, don’t get your hopes up.


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