Jottings By An Employer's Lawyer

Tuesday, May 25, 2010

Opening the Door to Facebook: Severe Emotional Distress May be the Key

A well reasoned opinion by Magistrate Judge Debra McVicker Lynch of the Southern District of Indiana dealing with a request for information from what she dubs Social Networking Sites (SNS) should be a starting point for anyone who is seeking (or opposing) information from an employment law plaintiff's facebook or myspace profile. The 13 page decision in EEOC v. Simply Storage Management that was issued on May 11, 2010 is a textbook example of what a good discovery ruling should be.

Regardless of whether you agree or disagree with how she decided, there is no doubting that the Judge understood the dispute, did not seem irritated by it, balanced the defendant's legitimate need for discovery and plaintiff's right to privacy, within the context of a premise of broad discovery and drew limits. Even better, she noted that the limits themselves might need further interpretation and provided some additional guidance.

Here's how the suit started according to the EEOC press release last October.

The discovery dispute arose when defendants requested Facebook and MySpace profiles, plus related communications and photos and videos, of two individuals on whose behalf the EEOC brought the sexual harassment claim.
The heart of the Court's ruling was as follows:
the court determines that the appropriate scope of relevance is any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS applications for claimants .... for the period from April 23, 2007, 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.
Additionally the Court held that third party communications to the claimants should be produced if "they place these claimants’ own communications in context."

With respect to videos and photographs, the Court applied the same test but gave more direction:
For example, pictures of the claimant taken during the relevant time period and posted on a claimant’s profile will generally be discoverable because the context of the picture and the claimant’s appearance may reveal the claimant’s emotional or mental status. On the other hand, a picture posted on a third party’s profile in which a claimant is merely “tagged,” is less likely to be relevant. In general, a picture or video depicting someone other than the claimant is unlikely to fall within the definition set out above.
A few other points (but you really should read the whole opinion):
  • Judge Lynch was quick to emphasize the limits of the Order, "This Order is directed toward two claimants who have alleged severe emotional distress, including post-traumatic stress disorder; it does not address the proper scope of discovery for “garden variety emotional distress claims.”
  • Although not explained, in connection with photos and videos the use of the verb "taken" during the applicable time frame stood out, although later the court did refer to "posted" in the context of third party pictures;
  • Although noting that the precision was not as precise as the lawyers might like, the Court also added that the EEOC should err on the side of production.
  • There was no mention of the additional dimension in this case. Because it was brought by the EEOC, it is possible that the claimants whose information is now being discovered might in fact be unwilling to sacrifice their privacy for the right to keep the suit alive. Given how carefully crafted the opinion is, I have no doubts if that were an issue (or at least if the Court were aware that it was an issue) it would have been addressed.
  • It is clear that Judge Lynch is much more comfortable with the internet world than those who currently sit at the top of her chain of command, see Sexting Case Befuddles Supreme Court: 'What's The Difference Between Email And A Pager?' and also
  • Unlike some on the Supreme Court she has no qualms about seeking assistance from jurisdictions out of United States as she discusses two Canadian decisions dealing with the same issue.
The case has already received considerable comment. My hat tip for catching it is Jon Hyman's post at The Ohio Employer's Law Blog, but following his hat tip leads to others, including some by non-lawyer bloggers:

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