Court Orders Plaintiff-Employee to Produce Social Media Postings on Claimed Emotional Distress, Alternative Potential Stressors and More
Our colleagues at the Technology Law Source Blog advise of a new interesting case concerning the discovery of social media account information in a disability discrimination case. There are two noteworthy pieces to this case. First, the New York federal court judge provides a good roadmap as what information posted on social networking sites is relevant and discoverable in a cases where damages from emotional and physical injury are sought. Second, by ordering plaintiff’s counsel to review the plaintiff’s postings for relevance – not Plaintiff – and produce them, the court offered another option on the always-frustrating issue of how to get social media information from the computer to the requesting counsel’s hand. We will leave the real heavy lifting to the Technology Law Source Blog, but in sum, here is what the court ordered was to be produced and what was not.
Categories of Information to Be Produced
Evidence of Emotional Damages: The court noted that the relationship of routine expressions of mood to a claim for emotional distress damages is tenuous, much more so than the obvious link between posts showing the plaintiff engaging in physical activity that would not be feasible given the plaintiff’s claimed physical injury. With this, the court concluded that routine status updates and/or communications on social media websites were not relevant to the plaintiff’s emotional damages claim, but found that some limited social networking postings should be produced on the emotional damages issue:
Plaintiff must produce any specific references to the emotional distress she claims she suffered or treatment she received in connection with the incidents underlying her … Complaint (e.g., reference sot a diagnosable condition or visits to medical professional). Moreover, in seeking emotional distress damages, Plaintiff has opened the door to discovery into other potential sources/causes of that distress. Thus any postings on social networking websites that refer to an alternative potential stressors must also be produced.
Social Media Evidence of Physical Damages: As for social media posts that would be relevant on the physical damages issue, the court noted “[p]ostings or photographs on social networking websites that reflect physical capabilities inconsistent with a plaintiff’s claimed injury are relevant.” However, because it was unclear whether plaintiff was seeking damages for a physical injury, the court directed the plaintiff to confirm if she was pursing relief for physical damages, and if so, to identify her alleged harm. In the event the plaintiff does, the court promised to address the scope of social networking discovery on physical damages. So, we will have to see what happens.
Social Media Evidence About Allegations in the Complaint: The court found that the defendant-employer’s request for information on “any accounts of the events alleged in plaintiff’s Amended Complaint – contradictory or otherwise…” was relevant and ordered all information that “exists on any social networking accounts maintained by the Plaintiff” to be produced.
Method of Production
On the issue of physical production of social media information, the defendant-employer had asked the plaintiff to sign an authorization for the release of records from the social accounts so it could subpoena the social networking hosting companies directly. Without acknowledging that subpoenaing a social networking company for records is an uphill battle in and of itself, the court did note that there was no reason to go through a third-party provider when plaintiff has access to the requested information herself, and directed that plaintiff’s postings be reviewed for relevant by plaintiff’s “counsel and that Plaintiff’s counsel – not Plaintiff – make a determination regarding the relevant of the postings, keeping in mind the broad scope of discovery contemplated under Rule 26.”
This case provides good roadmap for employers seeking discovery of social media information, not just in structuring interrogatories, but also in providing instructions in those interrogatories about how the information is to be reviewed for relevance and produced.