Here we go again. Just as we’ve discussed before, the courts are limiting overly broad social media discovery requests served by defense counsel. The latest example: Smith v. Hillshire Brands, No. 13–2605–CM (D. Kan. June 20, 2014). At its essence, Smith is an employment discrimination case in which the pro se Plaintiff alleged violations of both Title VII and FMLA. The specifics of the dispute need not be spelled out in detail as you’ve heard it all before.
Now, there were a number of components to the discovery dispute in this matter, but the social media discovery requests at issue were these:
Request No. 15: All documents constituting or relating in any way to any posting, blog, or other statement you made on or through any social networking website, including but not limited to Facebook .com, MySpace.com, Twitter.com, Orkut.com, that references or mentions in any way Hillshire and/or the matters referenced in your Complaint.
Request No. 18: Electronic copies of your complete profile on Facebook, MySpace, and Twitter (including all updates, changes, or modifications to your profile) and all status updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, and comments for the period from January 1, 2013, to present. To the extent electronic copies are not available, please provide these documents in hard copy form.
How curious to see a reference to in a social media discovery case! We wonder if the defendants had specific knowledge that the Plaintiff used Orkut or if that social media platform simply appears in all of their discovery requests.
Now, as you might imagine, Request No. 15 is legitimate and narrowly tailored, as it limits itself to social media postings relating to the employer or the events being litigated.
In fact, Plaintiff didn’t object to either of the requests, opting instead to produce – or claim to produce – all relevant documents. The dispute arose, however, when the employer defendant doubted that all documents had been produced.
Yes, the employer took the position that it could discover all of the Plaintiff’s social media activity as a result of his claims in the lawsuit. Skeptical of this argument, the Court noted:
Request No. 18 raises a more complex issue, as it seeks documentation of all of plaintiff’s activity on the named social networks since January 1, 2013, regardless of whether the activity has anything at all to do with this case or the allegations made in plaintiff’s complaint. Defendant asserts that this broad swath of information is relevant for at least two reasons. First, it “provide[s] a contemporary diary of Plaintiff’s activities, thoughts, mental/emotional condition, and actions,” which relate to plaintiff’s claim for damages arising from emotional distress. Second, it may support defendant’s “defense that Plaintiff abused his FMLA leave, which is the true reason for Plaintiff’s termination .” Defendant contends that the protective order governing this case adequately addresses plaintiff’s privacy concerns.
As it currently stands, the record does not support defendant’s extremely broad discovery request for all-inclusive access to plaintiff’s social media accounts. As plaintiff notes, such access could reveal highly personal information—such as plaintiff’s private sexual conduct—that is unlikely to lead to admissible evidence in this case. Information on social networking sites is not entitled to special protection, but a discovery request seeking it nevertheless must meet Fed.R.Civ.P. 26’s requirement that it be tailored “so that it ‘appears reasonably calculated to lead to the discovery of admissible evidence.’ “ “Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s [social networking] account[s].” The court agrees with courts that have recognized that a discovery request for unfettered access to social networking accounts—even when temporally limited—would permit the defendant “to cast too wide a net” for relevant information.
As some defendants do, the employer in this case attempted to justify the breadth of the requests by pointing to the emotional distress damages alleged by the Plaintiff. This works, sometimes, and it’s not a bad argument. As social media profiles often showcase our daily lives and the emotions we experience in our lives, what better evidence can there be to support or rebut claims of emotional distress than such things? On this point, the court was cautious:
Based on the limited record before it, the court finds it prudent to follow what appears to be the intermediate approach taken by courts addressing this issue—to allow defendant to discover not the contents of plaintiff’s entire social networking activity, but any content that reveals plaintiff’s emotions or mental state, or content that refers to events that could reasonably be expected to produce in plaintiff a significant emotion or mental state. The court concludes that this approach will permit defendant to discover information relevant to plaintiff’s emotional state, which he has put at issue, while protecting plaintiff from a fishing expedition into every thought he reduced to writing on the internet since January 1, 2013.
But it was one remark by the court that caught our eye and forced us to recognize once again the potential perils of overly broad discovery requests. Behold, the court’s suggestion that such things could be turned around on defendants:
Indeed, if the court were to accept defendant’s position on the scope of relevant discovery, defendant would likely be unhappy with the ramifications. For example, every Facebook post of every Hillshire manager and supervisor involved in the decision to terminate plaintiff could be deemed relevant because it might show discriminatory pretext.
No one wants that. Let’s be careful out there, okay?