Given the popularity of Facebook, Twitter, blogs and the like, it is not surprising that social media are a frequent target of discovery requests. Neither is there any real dispute that, in the proper circumstances, one’s social media activity is discoverable. But what are the circumstances that justify production of social media communications and what limits, if any, apply?
Two recent and strikingly similar cases illustrate that courts are not in accord on the scope of social media discovery. On very similar facts–both involving claims of employment discrimination and emotional distress–the two courts reached very different outcomes on the extent to which they would require discovery of the plaintiff’s social media activity.
A Unique Challenge
The first of the two cases, Robinson v. Jones Lang LaSalle Americas, involved a claim of race discrimination. Jones Lang sought to compel discovery of several items, including all of Robinson’s email and text messages with current and former Jones Lang employees and all social media content involving Robinson since July 1, 2008, including photographs, videos and blogs, as well as Facebook, LinkedIn and MySpace content that revealed or related to Robinson’s “emotion, feeling, or mental state,” to “events that could be reasonably expected to produce a significant emotion, feeling, or mental state,” or to allegations in Robinson’s complaint.
In an opinion issued Aug. 29, U.S. Magistrate Judge Paul Papak in Oregon allowed the motion to compel. He began his opinion by noting that, although Jones Lang had categorized its request for social media content as distinct from its request for email and text message, “I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.”
He then went on to discuss the case of E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010), which he described as “the most frequently cited and well-reasoned case addressing the discoverability of social media communications involving emotional distress.” He quoted this passage from Simply Storage:
It is reasonable to expect severe emotional or mental injury to manifest itself in some [social media] content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress. Further, information that evidences other stressors that could have produced the alleged emotional distress is also relevant.
That case recognized, Judge Papak wrote, “that social media can provide information inconsistent with a plaintiff’s allegation that defendant’s conduct caused her emotional distress, whether by revealing alternate sources of that emotional distress or undermining plaintiff s allegations of the severity of that distress.”
For that reason, Judge Papak entered an order compelling plaintiff Robinson to produce:
- Any email or text messages that she sent to, received from, or exchanged with any current and former employee of Jones Lang, as well as messages forwarding such messages.
- Any online social media communications by plaintiff, including profiles, postings, messages, status updates, wall comments, causes joined, groups joined, activity streams, applications, blog entries, photographs, or media clips, as well as third-party online social media communications that place plaintiff’s own communications in context.
Although he phrased this first part of his order broadly, he did include additional language to limit the scope of production. He required plaintiff to produce these communications only insofar as they reveal, refer or relate to:
- Any significant emotion, feeling, or mental state allegedly caused by defendant’s conduct; or
- Events or communications that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant’s conduct.
Discovery of social media communications presents a unique challenge, Judge Papak suggested in concluding his order. “It is impossible for the court to define the limits of discovery in such cases with enough precision to satisfy the litigant who is called upon to make a responsive production,” he wrote. “Nevertheless, the court expects counsel to determine what information falls within the scope of this court’s order in good faith and consistent with their obligations as officers of the court.”
Vague and Overbroad
Just a week after Judge Papak issued his order in Jones Lang, U.S. Magistrate Judge Suzanne H. Segal, sitting in U.S. District Court in Los Angeles, addressed a similar motion to compel in Mailhoit v. Home Depot USA, Inc., another employment discrimination case in which the plaintiff alleged mental and emotional distress. Here, Home Depot sought to compel plaintiff to produce:
- Any profiles, postings or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) from social networking sites from October 2005 (the date the discrimination was alleged to have started) through the present, that reveal, refer, or relate to any emotion, feeling, or mental state of plaintiff, as well as communications by or from plaintiff that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.
- Third-party communications to plaintiff that place her own communications in context.
- All social networking communications between plaintiff and any current or former Home Depot employees, or which in any way refer or pertain to her employment at Home Depot or her lawsuit.
- Any pictures of plaintiff taken during the relevant time period and posted on plaintiff’s profile or tagged or otherwise linked to her profile.
In responding to the motion, the plaintiff acknowledged that social media communications are discoverable when relevant, but she objected to these requests as overbroad. Defendant seeks “to rummage through the entirety of [plaintiff’s] social media profiles and communications in the hope of concocting some inference about her state of mind,” she argued.
Consistent with other courts, Judge Segal began her analysis by recognizing that social networking site content (“SNS content,” as she referred to it) is subject to discovery. However, to be in accord with the Federal Rules of Civil Procedure, discovery requests for social networking communications must be reasonably calculated to lead to the discovery of admissible evidence and describe the information to be produced with reasonable particularity, she said.
Turning to Home Depot’s requests for production, Judge Segal concluded that all but one of them failed to satisfy the reasonable particularity requirement. With regard to the first request for all social networking “profiles, postings or message,” Judge Segal explained:
Plaintiff has placed her emotional state at issue in this action and it is conceivable that some SNS communications may support or undermine her claims of emotional distress. Nonetheless, the extremely broad description of the material sought by this category fails to put a “reasonable person of ordinary intelligence” on notice of which specific documents or information would be responsive to the request, and therefore fails to satisfy Rule 34(b)(1)(A)’s requirement that production requests be stated with reasonable particularity.
She goes on to note that the request, insofar as it broadly covers communications relating to plaintiff’s emotions, could require plaintiff to produce messages of doubtful relevance, such as a posting stating, “I hate it when my cable goes out,” or something she posted while watching a football game.
As to Home Depot’s second request for “third-party communications,” this also fails for vagueness, Judge Segal concluded. “Category 2 is entirely predicated on Category 1 and fails for the same vagueness concerns discussed above,” she explained.
Last, Judge Segal denied Home Depot’s request for any pictures of plaintiff posted to social media on the grounds that it was overbroad. “Defendant fails to make the threshold showing that every picture of Plaintiff taken over a seven-year period and posted on her profile by her or tagged to her profile by other people would be considered relevant under Rule 26(b)(1) or would lead to admissible evidence,” she reasoned.
The one request Judge Segal enforced was for plaintiff’s social networking communications with current or former Home Depot employees. This request “adequately places Plaintiff on notice of the materials to be produced and is reasonably calculated to lead to the discovery of admissible evidence,” she said.
The contrast in outcomes between these two cases is perhaps best illustrated by a footnote in the Home Depot case. In footnote 3 of her opinion, Judge Segal states:
The Court acknowledges that Categories 1, 2 and 4 [of defendant’s production requests] are closely modeled after three categories of SNS communications that the court in Simply Storage Mgmt. ordered produced.
Simply Storage, you will recall, is the opinion on which Judge Papak relied in the Jones Lang case. In fact, Judge Papak’s order to compel closely tracks the Simply Storage order to compel. As Judge Segal acknowledges, Home Depot’s requests for production likewise closely tracked this very same language. But what was considered appropriate in Simply Storage and Jones Lang was deemed vague and overbroad in Home Depot.
So we circle back to where we began. Here we have two strikingly similar cases, decided within a week of each other, involving nearly identical requests for production of social media communications. In one, the motion to compel was allowed. In the other, it was denied.
Despite their different outcomes, the two cases teach a common lesson, I think. Even in allowing the motion in the first case, Judge Papak noted that discovery of social media communications presents a unique challenge and he urged counsel on both sides to use good faith in interpreting the limits of his order. In this sense, he further paralleled the Simply Storage ruling, where the court recognized that the categories of production it was enforcing were not drawn “with the precision litigants and their counsel typically seek” and urged counsel to carry out its order in good faith.
The lesson, then, is to tailor requests for production of social media communications as precisely as possible. In each of these recent cases, the courts were concerned with finding the balance between identifying discoverable evidence and avoiding undue burdens. To the extent counsel can formulate requests that enable the court to realize that balance, the more likely their requests are to be enforced.