In many employment cases, the parties engage in a battle over content in the plaintiff’s private social media accounts. The recent decision from the U.S. District Court in Eastern District of Michigan in Robinson v. MGM Grand Detroit, LLC, Case No. 17-CV-13128 (E.D. Mich. 1/17/2019) illustrates well how an employer can demonstrate its right to this discovery. In Robinson, the plaintiff, a valet attendant for the defendant employer, filed a complaint alleging race and disability discrimination under Title VII, the Americans with Disabilities Act, and in retaliation for taking medical leave under the Family and Medical Leave Act (FMLA). During the course of discovery, the employer sought and thereafter filed a motion to compel discovery from, among other sources, the plaintiff’s private social media accounts. Specifically, the employer sought discovery from the plaintiff’s Facebook account as well as Google Photo and Google location data for the limited time period that the plaintiff alleged he needed FMLA leave and was unable to work. Also, in its motion to compel, the employer relied on gym records that suggested that the plaintiff had been working out while on FMLA leave. Under the circumstances, the court granted the motion to compel discovery because the employer had demonstrated that the limited social media posts to be produced were relevant and proportional to the needs of the case to the extent that they related to the plaintiff’s activities while out of work. The court agreed with an earlier magistrate decision that the requests were relevant to:
- The plaintiff’s alleged disability, his FMLA time, and after-acquired evidence of his potential FMLA abuse
- His claim for emotional damages
- His efforts to mitigate his wage loss
In reaching its conclusion, the court distinguished the employer’s tailored approach in Robinson from an earlier personal injury lawsuit before it in which the defendant sought discovery of the plaintiff’s entire Facebook page without first making a threshold showing that the plaintiff was exaggerating her injuries.
Too often, employers are disappointed to learn that a lawsuit filed by against them by current or former employees does not give them license to explore the plaintiffs’ private social media accounts in discovery. The Robinson decision demonstrates that in order to obtain this evidence, they will have to show first from evidence already obtained that the social media accounts from which they are seeking discovery are likely to yield evidence that directly relates to some specific aspect of the plaintiffs’ case or their own defenses. Of course, sometimes the plaintiff has left his or her social media evidence publicly available, making it discoverable with as little as a simple Google search.