The law relating to the use of social media in litigation continues to evolve. A recent decision issued by the U.S. District Court for the Eastern District of New York, Caputi v. Topper Realty Corp. (decided Feb. 25, 2015), provides additional insight into how judges deal with this increasingly important issue.
In Caputi, a wage-and-hour case, defendants sought discovery from plaintiff regarding, among other things, her Facebook activity to support their claim that plaintiff did not, in fact, suffer emotional distress during a particular time period.
Noting that “[c]ourts have permitted discovery of social media account information for this purpose”, the court allowed defendants access to some, but not all, of plaintiff’s Facebook account information:
[T]he Court … declines to give Defendants complete access to Plaintiff’s Facebook account for the purpose of identifying photographs, postings or private messages that may appear inconsistent with someone experiencing emotional distress. Rather, Defendants are entitled to a sampling of Plaintiff’s Facebook activity for the period November 2011 to November 2013, limited to any specific references to the emotional distress [Plaintiff] claims she suffered in the Complaint, and any treatment she received in connection [there]with. Defendants may renew their application for the balance of Plaintiff’s Facebook account information upon probative evidence uncovered from the sampling, if any. In addition, in mounting a defense, Defendants are entitled to any Facebook activity, for the same time period, that refers to an alternative source or cause of Plaintiff’s alleged distress.
The court additionally directed the plaintiff “to preserve all of her Facebook activity for the duration of this litigation.”