By Mike Hamilton, J.D.
In almost any litigation concerning worker discrimination or product liability there is bound to be a request for social media information. And as e-discovery case law has shown, the standards for producing social media information are the same as for any other type of electronic information. The information requested must be relevant, non-privileged and not overly broad. But does that analysis change based on the nature of the claim (physical or emotional)? The answer is yes according to the Eastern District of New York in Giacchietto v. Patchogue-Medford Union Free School District (E.D.N.Y. May 6, 2013). In its ruling, the court made a clear distinction between the relevancy standards of social media information (status updates, messages, photos, etc.) for claims involving emotional damages and for those involving physical damages.
- Claims for physical damages: Any posting or photos that reflect physical capabilities inconsistent with a claim are relevant.
- Claims for emotional damages: Routine postings and/or communications that showcase a person’s mood at a given time are not relevant. Discovery of this information is limited to specific references to the emotional claims suffered or treatment received in connection with the incidents underlying the complaint.
In Giacchietto, the plaintiff, Theresa Giacchietto, an elementary school teacher, claimed that the defendant, her employer, Patchogue-Medford Union Free School District, violated the Americans with Disabilities Act by discriminating against her after she informed her superiors that she had ADHD. The plaintiff claimed emotional and physical damages. During discovery, the defendant motioned to compel the plaintiff to provide social media information in relation to her emotional and physical state. The defendant limited this motion to three categories of social media information: (1) Postings about the plaintiff’s emotional and psychological state, (2) Postings about the plaintiff’s physical damages, and (3) Any information regarding the events alleged in the plaintiff’s complaint.
The court acknowledged that there are “varying conclusions regarding the relevance of social networking postings in cases involving claims for emotional distress damages.” While some courts have held that these posting are relevant, the Eastern District of New York chose not to allow a broad production of social media postings “If the court were to allow broad discovery of Plaintiff’s social networking postings as part of the emotional distress inquiry, then there would be no principled reason to prevent discovery into every other personal communication the Plaintiff had or send since alleged incident.” Thus, a person’s social media account is “not necessarily relevant simply because he or she is seeking emotional distress damages.”
Based on the foregoing information, the court concluded that the plaintiff’s postings generally were not relevant to her claim for emotional damages, with the caveat that there were limited situations, such as specific references to emotions connected to the events underlying her complaint or “an alternative potential stressor”, in which the postings are relevant. As a result, the court granted the plaintiff’s motion to compel in part, significantly limiting the scope of information being requested.
The court also addressed another thorny discovery issue: the proper production method for social media information. Generally, there are two production options: (1) Subpoena the social media companies for the records or (2) have attorneys representing the party, not the party itself, review their social media account for relevance. The court chose the latter option, and also advised the plaintiff’s counsel to keep in mind the “broad scope of discovery contemplated under Rule 26” when reviewing for relevance.
THE E-DISCOVERY BEAT’S TAKE
Based on the Giacchietto ruling, litigants in the 2nd Circuit, especially those involved in worker discrimination matters, need to be mindful of the nature of the claim, namely whether it concerns physical or emotional damages, when requesting social media information. The Giacchietto ruling re-emphasizes the fact that there are numerous intricacies involved in requesting social media information, even when the court uses a “traditional relevancy analysis.”
Here are few best practices/proactive steps to streamline the process for requesting social media information:
- To request social media data, lay the necessary foundation by narrowly tailoring your request to relevant information. Courts will not grant parties broad access (a.k.a. fishing expeditions) to try to uncover responsive social media information.
- To ensure social media information isn’t prematurely deleted, discuss with your client whether relevant social media information exists. If so, inform the applicable persons in a written legal hold/letter that their duty to preserve extends beyond the ordinary business documents (word files, emails, etc.).
- Instead of immediately requesting access to a social media account, attempt an agreement with the opposing party’s counsel to have them review the person’s account for relevant information. This will not only save time and money but it will showcase to the court that you are willing to cooperate and compromise with the other side.
- Legal teams must remember to leverage technology when searching for public social media information. This will enable counsel to make arguments based on fact, rather than speculation.
To learn more about social media and how to address this evolving e-discovery issues, read the recently published article in Peer to Peer magazine, Social Media: No place for privacy.
Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin. Contact him directly at firstname.lastname@example.org.