Discovery of Plaintiff’s Social-Networking Profile

An employer facing litigation brought by a current or former employee often has good reason to seek discovery of the plaintiff-employee’s Facebook posts. For example, an employee who alleges that she was subject to an unlawful hostile work environment in violation of Title VII must show not only that the allegedly harassing conduct was objectively severe or pervasive but also that she subjectively believed it to be so.

I’ll use myself as an example. I tend not to be easily offended. In fact, I’m usually the one who has to watch her comments so as not to offend others. If I were to claim that I was subject to unlawful harassment based on my gender, I would first have to point to comments or conduct that a reasonable woman in my position would find offensive–the objective component. But the inquiry does not end there. I would also have to show that I found the comments or conduct to be offensive–the subjective component.

A plaintiff who says that she was not adversely affected by the conduct defeats her own claim. In other words, plaintiffs are not doing themselves any favors when they respond that they were “tough” or “didn’t let the conduct bother [them].” Instead, the plaintiff must point to some evidence tending to show that she was affected by the conduct–so much so that the nature of the workplace itself was transformed (negatively) by the allegedly unlawful conduct.

This evidence can take the form of depression, inability to sleep, weight loss or gain, anxiety, etc. And that is precisely why posts on social-networking sites, such as Facebook, can be so critical to the defense of these claims. A harassment claim can be defeated by the plaintiff-employee’s Facebook posts that reflect a happy, not-anxious state of mind.

But getting access to a plaintiff’s social-networking profile is easier said than done, as many defense lawyers have learned already. A recent decision from a federal court in Nevada grants broad access to this content but doe so in a fairly unusual manner.

In Thompson v. Autoliv ASP, Inc., the plaintiff alleged personal-injury and product-liability claims, arising from an automobile accident in April 2007. The plaintiff alleged that she sustained significant injuries due to a defective seat belt and airbag. Before making a formal discovery request, the defendant obtained posts and photos from the plaintiff’s publicly available Facebook profile, which, according to the defendant, constituted evidence of her “post-accident social activities, mental state, relationship history, living arrangements, and rehabilitative progress,” all of which were relevant to the underlying claims and defenses.

Thereafter, though, the plaintiff changed the privacy settings on the account so that the information was no longer publicly available. In response, the defendant sought to compel a complete copy of all of the plaintiff’s social-networking accounts from the date of the accident to present. the plaintiff objected, arguing that the request was a mere fishing expedition.

The court granted the defendant’s motion–with some unusual conditions. Recognizing that “litigation does not permit a complete and open public display of Plaintiff’s life,” the court ordered the plaintiff to upload onto an external storage device “all information from her Facebook and MySpace accounts” from the date of the accident to the present and to provide defense counsel with an “index of redacted social networking site communications.” Once received, counsel was to review the content–but was ordered not to share the content with anyone other than support staff.

Venkat Balasubramani posted about the case at Eric Goldman’s Technology & Marketing Law Blog and, as usual, takes an interesting perspective on the practical implications of the court’s order. He raises questions that I had, as well, such as: (1) what is an “index;” and (2) why would there be any redacted communications if the plaintiff is required to produce all contents.

Thompson v. Autoliv ASP, Inc., No. 2:09-cv-01375-PMP-CVF, 2012 U.S. Dist. LEXIS 85143, 2012 WL 2342928 (D. Nev. June 20, 2012).

See also:
Access to Party’s Facebook Account During Discovery
Facebook Message Leads to Disability Claim
Employee’s Facebook Posts Protected by First Amendment

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