Social Media Discovery Addressed, Limited in Employment Discrimination Case

In Lopez v. Bendell, No. 156292/2017, 2021 WL 826394 (N.Y. Sup Ct, New York County Mar. 03, 2021) – an employment discrimination case – the court addressed several of defendants’ discovery requests, including, inter alia,^[1]While this decision also addresses defendants’ motion to compel other discovery, e.g., an independent medical examination, tax records, authorizations for government benefits, “pedigree” information, attorney fee information, plaintiff’s job application to and identity of her current employer, and plaintiff’s criminal history/arrests, here I will limit my discussion to defendants’ motion to compel plaintiff’s social media information. their request for

“all diaries, logs, notes, tapes, memoranda and communications kept during her course of employment with defendants;” “all documents including electronic communications, given and/or sent by plaintiff to any employee, officer and/or agent of defendants;” “all text messages between herself and managers Nick Tayeh, Freddy Juseinowski and Zeudi Cocking;” and “all social media posts concerning plaintiff’s work at defendants’ dealership and concerning happy communications.”

The court provides the following summary of the “black letter” principles applicable to social media discovery:

With regard to discovery as it relates to plaintiff’s social media accounts, the Court of Appeals in Forman v Henkin, 30 NY3d 656, 663-664 [2018] held that the general principles governing discovery apply “in the context of a dispute over disclosure of social media materials,” and thus found that the Appellate Division “erred in employing a heightened threshold for production of social media records that depends on what the account holder has chosen to share on the public portion of the account.” At the same time, the court “rejected the notion that commencement of an action renders a plaintiff’s entire Facebook account automatically discoverable” (id., at 664-665 [citations omitted]).

With respect to the appropriate method for addressing disputes regarding discovery of social media information, the court wrote that:

[C]ourts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials. In a personal injury case … it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate–for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation. Moreover, to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court (see CPLR 3103[a]).
(id., at 665.)

Applying the law, the court held:

Under these principles, while defendants are entitled to discovery from plaintiff’s private social media accounts to rebut plaintiff’s claims of emotional distress related to allegations of workplace discrimination, defendants’ request for “all social media posts concerning plaintiff’s work at defendants’ dealership and concerning happy communications,” is overly broad and burdensome. In this connection, the court finds that the usefulness of social media posts to measure plaintiff’s happiness over the entire duration of her employment at the dealership is not sufficient to warrant the wholesale turning over of plaintiff’s social media accounts (id, at 665 [“the potential utility of the information sought [must be weighed] against any specific ‘privacy’ or other concerns raised by the account holder”]; see also Doyle v Tempco Service Industries, Inc., 172 AD3d 554-555 [1st Dept 2019] [defendants’ discovery demands seeking access to all of plaintiff’s social media accounts is overbroad).

*5 Accordingly, the request for social media posts shall be limited to those related to plaintiff’s posts about her work place during her period of employment (2011-2017) and for six months following her termination which concern the impact of her employment at the defendant dealership on her mental or physical well-being, including stress or anxiety experienced at the work place, and her satisfaction or lack of satisfaction with her employment.