Court orders in camera review of injured plaintiff’s Facebook content

Richards v. Hertz Corp., — N.Y.S.2d —, 2012 WL 5503841 (N.Y.A.D. 2 Dept. November 14, 2012)

Plaintiff sued defendant for personal injury. Defendant saw a photo plaintiff had publicly posted on Facebook of herself skiing. When defendant requested plaintiff to turn over the rest of her Facebook content (presumably to find other like-pictures which would undermine plaintiff’s case), plaintiff sought a protective order. The trial court granted the motion for protective order, but required plaintiff to turn over every photo she had posted to Facebook of herself engaged in a “sporting activity”.

woman skiing

Defendants appealed the entry of the protective order. On review, the appellate court reversed and remanded, finding that defendants had made a showing that at least some of the discovery sought would result in the disclosure of relevant or potentially relevant evidence.

But due to the “likely presence” of private and irrelevant information in plaintiff’s account, the court ordered the information be turned over to the judge for an in camera review prior to disclosure to defendants.

Whether the plaintiff effectively preserved her Facebook account information may be an issue here. The facts go back to 2009. One is left to wonder whether and to what extent plaintiff has not gone back and deleted information from her account which would bear on the nature and extent of her injuries. It goes to show that social media discovery disputes can take on a number of nuances.

Photo courtesy Flickr user decafinata under this Creative Commons license.

Plaintiff has to turn over emotional social media content in employment lawsuit

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.”

emotional on social media

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.

Photo courtesy Flickr user xdxd_vs_xdxd under this Creative Commons license.

Employer not allowed to search for porn on employee’s home computer

In re Jordan, — S.W.3d —, 2012 WL 1098275 (Texas App., April 3, 2012)

Former employee sued her old company for subjecting her to a sexually hostile workplace and for firing her after she reported it. She claimed that she had never looked at pornography before she saw some on the computers at work. During discovery in the lawsuit, the company requested that employee turn over her home computer so that the company’s “forensic computer examiner” could inspect them.

The trial court compelled employee to produce her computer so that the forensic examiner could look for pornography in her web browsing history and email attachments. The employee sought mandamus review with the court of appeals (i.e., she asked the appellate court to order the lower court not to require the production of the hardware). The appellate held that she was entitled to relief, and that she did not have to hand over her computer.

The appellate court found that the lower court failed to consider an appropriate protective order that would limit inspection to uncover specifically-sought information in a particular form of production. In this case, the company had merely asked for the hardware without informing employee of the exact nature of the information sought. And the company provided no information about the qualifications of its forensic examiner. Though the trial court tried to limit the scope of the inspection with carefully chosen wording, the appellate court found that was not sufficient to protect the employee from the risks associated with a highly intrusive search.

Photo credit: Jakob Montrasio (CC BY 2.0)

There is no “generalized right to rummage” through an adversary’s Facebook account

Tompkins v. Detroit Metro. Airport, 2012 WL 179320 (E.D. Mich. January 18, 2012)

Plaintiff filed a personal injury lawsuit against defendants claiming she was impaired in her ability to work and enjoy life. One of the defendants filed a motion with the court asking it to order plaintiff to authorize access to her entire Facebook account. The court denied the motion. Finding that defendant had not made a “sufficient predicate” showing that the sought-after information was relevant, and that the request was overly broad, the court held that defendant “[did] not have a generalized right to rummage at will through information that [plaintiff had] limited from public view.”

The court distinguished two other well-known social media discovery cases, Romano v. Steelcase and McMillen v. Hummingbird Speedway. In those cases, the Facebook users had posted photos of themselves engaged in activities that were inconsistent with their claimed injuries (e.g., going fishing and traveling to Florida). The publicly-visible photos that plaintiff in this case posted, which defendant argued made the rest of her account relevant, were of her holding a 2-pound dog, and standing with friends at a birthday party. “If [her] public Facebook page contained pictures of her playing golf or riding horseback,” the court noted, “[defendant] might have a stronger argument for delving into the nonpublic section of her account.”

The court made clear that its decision did not address the question of whether a Facebook user has a reasonable expectation of privacy in so-called private pages. (And there’s nothing in the decision to suggest that inquiry should be answered in the affirmative.) The court also noted that it was not answering the question of whether one could challenge a subpoena to Facebook under the Stored Communications Act (18 U.S.C. 2701 et seq.) as contemplated by Crispin v. Christian Audigier, 717 F.Supp.2d 965 (S.D. Cal. 2010).

Other coverage from Eric B. Meyer.

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