Employment Litigation And The Discovery Of Information On Social Networking Sites

Now-a-days it seems like electronic discovery of information on social networking sites and employment litigation go hand in hand. Yet, there are few cases discussing this developing issue.

In a recent case in the U.S. District Court for the Southern District of Indiana, the court shed some light on how much information on social networking sites, such as Facebook and MySpace, is discoverable to an employer defending an employment discrimination claim.

In the case of EEOC v. Simply Storage Management, two employees claimed that they were subjected to sexual harassment during their employment with Simply Storage. The Equal Employment Opportunity Commission (EEOC) filed a complaint on their behalf.

During the course of the litigation, Simply Storage sought discovery of the following information from the employees’ social networking pages on Facebook and MySpace:

• All photographs or videos posted by the employees or anyone on their behalf on Facebook or MySpace; and
• Electronic copies of the employees’ complete profiles on Facebook and MySpace (including all updates, changes, or modifications to their profiles) and all status updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments, and applications (including, but not limited to, “How well do you know me” and the “Naughty Application”).

The EEOC objected to the request for production on the grounds that the requests were not relevant, improperly infringed on the employees’ privacy, and would harass and embarrass the employees. Simply Storage claimed that discovery of these matters was proper because the employees put their emotional health at issue beyond that typically encountered with “garden variety emotional distress claims.”

The court agreed with Simply Storage and ordered the discovery. In doing so, it made the following observations about the discovery of social networking in discrimination cases:

1. Social networking content is not shielded from discovery merely because it is “locked” or protected as “private.”
2. However, all social networking content is not necessarily relevant or discoverable in all cases; the information must still be relevant to a claim or defense in the case. The court used the following example to illustrate this difference: “If a claimant sent a message to a friend saying she always looks forward to going to work, the person to whom she sent the message and the substance of the message are what should be considered to determine whether the message is relevant…. But the mere fact that the claimant has made a communication is not relevant because it is not probative of a claim or defense in this litigation.”
3. Allegations of depression, stress disorders, and similar injuries will manifest themselves in some social networking content. An examination of that content might reveal whether and when onset occurred, the degree of distress, and other stressors that could have produced the alleged emotional distress.

1. Because discovery is meant to be liberal, the producing party should err in favor of production if there is any doubt over the arguable relevance of social networking information.

So, keep in mind that if an employee thought the relevant information was fit to share with his or her Facebook friends, it is fit to be disclosed in discovery. As these issues become more widespread in litigation, they will certainly be scrutinized more and possibly restricted. In the meantime, consider including requests for social networking information in all employment disputes.

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