Court holds that Facebook, LinkedIn and MySpace postings relating to plaintiff’s emotional state must be produced in discovery.
Robinson v. Jones Lang LaSalle Americas, Inc., 2012 WL 3763545 (D.Or. August 29, 2012)
Plaintiff sued her former employer for discrimination and emotional distress. In discovery, defendant employer sought from plaintiff all of her social media content that revealed her “emotion, feeling, or mental state,” or related to “events that could be reasonably expected to produce a significant emotion, feeling, or mental state.”
When plaintiff did not turn over the requested content, defendant filed a motion to compel. The court granted the motion.
The court relied heavily on the case of E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D.Ind. 2010) in ordering plaintiff to produce the requested social media content. The Simply Storage court found that:
It is reasonable to expect severe emotional or mental injury to manifest itself in some [social media] content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress. Further, information that evidences other stressors that could have produced the alleged emotional distress is also relevant.
Consistent with the principles of Simply Storage the court in this case ordered production from plaintiff all social media communications:
that reveal, refer, or relate to any significant emotion, feeling, or mental state allegedly caused by defendant’s conduct;
The production of this category of communications was meant to elicit information establishing the onset, intensity, and cause of emotional distress allegedly suffered by plaintiff because of defendant during the relevant time period.
The court also ordered plaintif to produce all social media materials concerning:
events or communications that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant’s conduct.
This second category was meant to elicit information establishing the absence of plaintiff’s alleged emotional distress where it reasonably should have been evident (i.e., under the rubric of Simply Storage, on her social media accounts).
The court observed how counsel for the parties plays an important role in the discovery of social media. As the court in Simply Storage recognized, it is an “impossible” job for the court to define the limits of social media discovery with enough precision to satisfy the producing party. To address this impossible situation, it falls to the lawyers to act in good faith to produce required materials, inquire about what has and has not been produced, make the appropriate challenges, and seek revision of the discovery order as appropriate.