In Moll v. Telesector Res. Grp., Inc., No. 04-CV-0805S(SR), 2016 WL 6095792 (W.D.N.Y. Oct. 19, 2016), a sex discrimination/hostile work environment/retaliation case, the court ruled on the parties’ respective motions to compel discovery. (For more background on this case, you may wish to review the Second Circuit’s 2014 decision vacating the district court’s 2012 summary judgment dismissal of plaintiff’s hostile work environment claims.)
Here I’ll discuss one aspect of the court’s decision: defendant’s attempt to obtain information regarding plaintiff’s social media accounts.
Among other things, defendants sought (as summarized by the court)
all information posted by or sent to plaintiff on any social networking website or webpage from January 1, 2003 to the present regarding Verizon or relating to the subject matter of this action, any of plaintiff’s claims, or any allegation in plaintiff’s second amended complaint.
Defendant argued, inter alia, “that plaintiff has placed her emotional state at issue in this lawsuit, thereby opening herself to discovery of her social media posts related to everyday activities in which she has participated” and that “because Plaintiff contends that her employment at Verizon has caused her to suffer depression, anxiety, adjustment disorder with physical impairments relating therefrom, Verizon has the right to review her social media activity documenting the everyday activities in which Plaintiff has participated (social, recreational or otherwise), which are relevant to her mental and physical conditions that she has placed at issue in this litigation.”
Citing Federal Rule of Civil Procedure 26(b)(1), the court explained:
[A] plaintiff’s entire social networking account is not necessarily relevant simply because he or she is seeking emotional distress damages.” Giachetto v. Patchogue-Medford Union Free Sch. Dist., 293 F.R.D. 112, 115 (E.D.N.Y. 2013). In other words, “unfettered access to Plaintiff’s social networking history will not be permitted simply because Plaintiff has a claim for emotional distress damages.” Id. at 116; See Silva v. Dick’s Sporting Goods, Inc., No. 3:14cv580, 2015 WL 1275840, at *2 (March 19, 2015) (emotional distress claim does not warrant disclosure of all Facebook posts). More specifically, “routine status updates and/or communications on social networking websites are not, as a general matter, relevant to [plaintiff’s] claim for emotional distress damages, nor are such communications likely to lead to the discovery of admissible evidence regarding the same.” Giachetto, 293 F.R.D. at 115. Thus, it is not appropriate to permit unrestricted access to social media “for the purpose of identifying photographs, postings or private messages that may appear inconsistent with someone experiencing emotional distress.” Caputi v. Topper Realty Corp., No. 14-CV-2634, 2015 WL 893663, at *7 (E.D.N.Y. Feb. 25, 2015); See Giachetto, 293 F.R.D. at 115 (“fact that an individual may express some degree of joy, happiness, or sociability on certain occasions shed little light on the issue of whether he or she is actually suffering emotional distress.”). However, posts specifically referencing the emotional distress plaintiff claims to have suffered or treatment plaintiff received in connection with the incidents alleged in her complaint and posts referencing an alternative potential source of cause of plaintiff’s emotional distress are discoverable. Caputi, 2015 WL 893663, at *7. In addition, “posts regarding plaintiff’s social activities may be relevant to plaintiff’s claims of emotional distress and loss of enjoyment of life.”
In sum, the court denied defendant’s “request for unrestricted access to plaintiff’s facebook account” (based on plaintiff’s “representation that she has never made any postings pertaining to her employment with Verizon or any claims or defenses in this action”), but directed plaintiff to “supplement her disclosure to include any posts or comments referencing plaintiff’s emotional state or social activities, including any photographs which may have accompanied such posts or comments.”