For many, sharing on Facebook, Twitter, Linked In, and other social media-related websites is a daily routine. But what happens to that routine when a person becomes involved in litigation? This is a question that almost always has to be answered in the context of employment discrimination lawsuits.
The answer to this question, however, will often depend on the circumstances. This point recently played out in a lawsuit filed by a former employee based upon her race as well as a hostile work environment and retaliation (Potts v. Dollar Tree Stores, Inc., Mar. 20, 2013 under under Title VII of the Civil Rights Act of 1964 (as amended, 42 U.S.C. § 2000e et seq.) and the Equal Pay Act (29 U.S.C. § 206).
This lawsuit is still ongoing, but an interesting issue on the issue of social media was recently decided by the trial judge in the litigation phase called “discovery.” Discovery in litigation refers to the phase where parties are permitted to obtain – through written questions, requests to produce information such as documents or digital information, or through deposing a person.
Discovery is intended to be broad and allows a party to obtain “discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense” or that is “reasonably calculated to lead to the discovery of admissible evidence.”
Relying on the broad scope for discovery, the defendant employer sought access to a number of areas and filed a motion to compel Plaintiff to produce the following:
- Any relevant documents maintained on any computer in Plaintiff’s possession or control including those documents and/or emails stored in any online email account, such as Plaintiff’s Yahoo! or AOL accounts;
- Any computers or digital storage devices used by either Plaintiff during and after her employment with Defendant;
- Emails that pertain in way to this lawsuit;
- Documents, photographs, or other information concerning Dollar Tree stores or Plaintiff’s claims;
- Any non-privileged communications or documents exchanged between Plaintiff and Trowery;
- Facebook and/or other social media data;
- Plaintiff’s complete tax returns and all attachments thereto from 2007 to the present; and
- Plaintiff’s application and other materials submitted to the Social Security Administration in connection with her claim for disability benefits.
While Plaintiff produced some information, she contended that her former employer was not entitled to full access to Plaintiff’s Facebook pages. In deciding the issue in favor of the plaintiff, the trial judge first noted that the Sixth Circuit (the jurisdiction that Michigan is in) had to to rule on the scope of discovery of private Facebook pages, but other courts have concluded:
[M]aterial posted on a private Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather … there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engaged in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.
Production of plaintiff’s computer was a different story. Specifically, the Court concluded that information stored on the computer could lead reasonably lead to the discovery of admissible evidence and, therefore, would be produced. But that production would take place with court restrictions that included using a third-party neutral to conduct the computer search, which would based on agreed upon key words to assess whether Plaintiff’s computer contains relevant information.
The Take Away
The Potts case is not a binding decision for Michigan employers and employees. But it is a good reminder for both that it is not going to be a good day in court if your judge believes your employment discrimination strategy involves a “fishing expedition” to “rummage” through the opposing party’s digital drawers.
It is, therefore, important to carefully consider what information you will ask a plaintiff or defendant to provide. This consideration needs to further drill down to the rational basis for asking for such information and being able to articulate a reasonable explanation for why a particular social media repository is likely to be a legitimate source of production relative to the litigation.
But as the Potts case illustrates, it is mistake to assume that just because discovery is supposed to be “broad” (which often is one of the laziest cliché in all of law) that you’ll be able to get away with pursuing a digital fishing expedition.
And even if you could, casting a wide discovery net in litigation can be costly. Consider that even a single laptop, an email account, and one or two social media accounts will often yield gigabytes of information that will require attorney time to review and process it. On top of this, you’ll often end up paying all or some of the cost for a computer forensic specialist to conduct the review. This means that if discovery is not intelligently planned you’ll end up with a very expensive fishing expedition with no guaranteed substance to show for it.