Clicking “Private” on Your Facebook Page is Like Hiding Under the Blanket. They Can Still See You.

by Mehjabeen S. Rahman

We live in an age where not having a Facebook is somewhat unusual. Interestingly these days, a colleague with whom you are Facebook friends may even express shock or surprise when you tell them about your sister’s baby-shower last week, because the colleague “didn’t see anything on Facebook about it.” As expected, the law has had some difficulty in wrestling with how to handle social media as a tool of evidentiary value, especially in discovery disputes. To put it in perspective, imagine filing a suit against an employer, seeking damages for emotional distress caused by an employment action or treatment, and having to disclose all your social media posts from the date of the allegations to the present (remember lawsuits can take months to years). As an Indiana district court judge noted, postings on Facebook and other social media present a unique challenge for courts, because of their novelty and their ability to be shared with individuals other than the original poster.[1] Nevertheless, a court may compel the production of a party’s Facebook information if the party seeking such information makes the necessary threshold relevance showing.[2]

The most cited and seminal case in this specific area is EEOC v. Simply Storage Mgmt., LLC,[3] a sexual harassment suit where employer Simply Storage argued that all the content of plaintiffs’ social networking sites (“SNS”) is relevant and must be produced.[4] The magistrate judge held that although the contours of social communications relevant to a claimant’s mental and emotional health are difficult to define, that does not mean that everything must be disclosed. Further, the judge noted that allegations of depression, stress disorders, and like injuries do not automatically render all SNS communications relevant, but it is reasonable to expect severe emotional or mental injury to manifest itself in some social media content. Examination of that content might reveal whether the onset of distress occurred and its degree, thus the inquiry is not whether social media discovery is appropriate, rather it is the permissible scope of that discovery that is at issue.[5]

A very interesting case in this area was decided in 2007.[6] This case was a sexual harassment suit in which the employee pharmacist alleged that she suffered from severe emotional distress.[7] The plaintiff claimed it was so severe in fact, that she could not properly participate in the active litigation, and kept her from appearing at her deposition on multiple occasions.[8] The case was then dismissed for lack of prosecution[9] and in her motion to set aside that judgment, the plaintiff claimed that she was too distressed to contact her counsel or actively participate in the case.[10] Defendants submitted evidence in response to the plaintiff’s Motion to Reconsider, that consisted of her Facebook posts tailgating with friends at a football game and “enjoying the attention of young men” the very week her deposition was scheduled.[11] The Court ultimately denied the plaintiff’s motion and dismissed all the claims with prejudice, finding that she did not dispute that she was able to work during the relevant time period during she was attending parties and football games.[12]

Several district court magistrates in different jurisdictions have articulated that as a general matter, under F.R.C.P. Rule 26,[13] there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.[14] The court in Tompkins, holding that Defendants’ request for Plaintiff’s entire social media account was overly broad, noted that in addition to the fact that the defendants failed to make a sufficient showing that the material sought was reasonably calculated to lead to the discovery of admissible evidence, the media page “may well contain voluminous personal material having nothing to do with this case.”[15]

What all of this really boils down is a failure to mitigate damages,[16] which makes sense because as a policy matter, a plaintiff should not be entitled to damages where s/he is posting completely conflicting evidence on social media page, even if it is private from the public but still accessible by a small group of individuals. The take-away? Post at your own risk.

[1] Higgins v. Koch Development Corp., 2013 WL 3366278 at *2 (S.D. Ind. 2013).

[2] Id.

[3] 270 F.R.D. 430 (S.D. Ind. 2010).

[4] Id. at 434.

[5] Id at 434-435.

[6] Elam v. Pharmedium Healthcare Corp., et al., No. 2:07CV212-P-A (N.D. Miss. Nov. 13, 2007).

[7] Id.

[8] Memorandum of Law in Support of Plaintiff’s Motion to Reconsider at 4, Elam v. Pharmedium Healthcare Corp., et al., No. 2:07CV212-P-A (N.D. Miss. Mar. 12, 2009), ECF No. 99.

[9] Order Dismissing Case and to Show Cause at 4, Elam v. Pharmedium Healthcare Corp., et al., No. 2:07CV212-P-A (N.D. Miss. Feb. 18, 2009), ECF No. 94.

[10] Memorandum of Law in Support of Plaintiff’s Motion to Reconsider, supra note 8 at 4.

[11] Affidavit of Ursula Holmes at Exhs. A-B, Elam v. Pharmedium Healthcare Corp., et al., No. 2:07CV212-P-A (N.D. Miss. May 19, 2009), ECF No. 104).

[12] Elam, supra note 6.

[13] Fed. R. Civ. P. 26.

[14] See, e.g., Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012) (“Although defendant specified the type of evidence sought [Facebook account], it failed to establish a factual predicate with respect to the relevancy of the evidence”); Mailhot v. Home Depot USA Inc., 285 F.R.D. 566, 570-571 (C.D. Cal. 2012) (“In particular, several courts have found that even though certain SNS content may be available for public view, the Federal Rules do not grant a requesting party ‘a generalized right to rummage at will through information that [the responding party] has limited from public view’”); Jewell v. Aaron’s Inc., 2013 WL 3770837 at *3 (N.D. Ga. 2013); Holter v. Wells Fargo & Co., 281 F.R.D. 340, 344 (citing EEOC v. Simply Storage) (“This Court would not allow depositions of every friend and acquaintance to inquire about every conversation and interaction with plaintiff. So too, the Court will not require plaintiff to produce all information from all her social media websites to obtain similar information.”).

[15] Tompkins, 278 F.R.D. at 388 (finding that the defendant in a slip and fall case who sought Facebook postings and photographs failed to establish relevancy of material where the material was not necessarily inconsistent with the plaintiff’s injury claims); see also Palma v. Metro PCS Wireless Inc., 13 F.Supp. 3d 1346, 1348 (M.D. Fl. 2014) (holding that Defendant’s speculation that the social media messages might include a party admission, without more, is not a sufficient reason to require Plaintiffs to provide Defendant open access to their communication with third parties).

[16] See Glazer v. Fireman’s Fund Ins. Co., 2012 WL 1197167 (S.D.N.Y. 2012) (finding that online chats revealed the plaintiff’s work performance, relationships with coworkers, emotional state before, during, and after her employment, as well as her efforts to mitigate damages).

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