Tuesday, January 1, 2013

Judge allows discovery of private Facebook postings and photos in sexual harassment case

In an order, found here: Reid v. Ingerman Smith, LLP (E.D.N.Y Dec. 27, 2012), Magistrate Judge Marilyn D. Go granted (and denied in part) a motion to compel discovery of plaintiff Reid's social media usage. The case itself revolves around a sexual harassment claim brought by Reid against Ingerman Smith for an incident while Reid was employed as a legal secretary. More details regarding the case can be found here (in an order to deny in part and grant in part a motion to dismiss the case, authored by Judge Glasser).

Judge Go agreed with the defendants that Reid's Facebook postings and comments on photographs placed on Facebook were relevant to whether Reid had actually experienced the emotional distress she claimed resulted from the sexual harassment. The court reviewed how other jurisdictions had dealt with similar questions, after observing that: "[a]lthough the law regarding the scope of discovery of electronically stored information ("ESI") is still unsettled, there is no dispute that social media information may be a source of relevant information that is discoverable." The ultimate issue, then, as summarized by the court:

The defendants argue that since postings and photographs from the public portions of plaintiff's Facebook account contain information that contradict plaintiff's claims of mental anguish resulting from the alleged sexual harassment by defendant Sadowski and termination of her employment, the non-public portions may also provide relevant information. Plaintiff responds that she should not be subject to broad discovery of the entirety of her social media account and be required to disclose private information.
I think any court facing this dilemma is trying to do two things: (1) facilitate discovery of information that is no doubt relevant to the claims in the case, but more importantly, (2) attempting to prevent further emotional damage to the plaintiff, whose privacy was already violated once by the sexual harassment, by limiting the reach of the prying inquiry requested by the defendant. I'm not necessarily convinced Judge Go achieved the second goal adequately. At least in the order, she exempted trivial personal information and photographs from birthdays, but did not really delineate what should be excepted. She offered stipulations at the end regarding discovery, but it remains to be seen if the scope will be as limited as she imagined with such a dearth of adequate guidance by the court.

The court summed up its thoughts as follows:

While plaintiff is correct that disclosure of her personal social media account may raise privacy concerns, such a consideration is more "germane to the question of whether requested discovery is burdensome or oppressive and whether it has been sought for a proper purpose" rather than to affording a "basis for shielding those communications from discovery." E.E.O.C. v. Simply Storage Mgmt., 270 F.R.D. 430, 434 (S.D. Ind. 2010). 
Even had plaintiff used privacy settings that allowed only her "friends" on Facebook to see postings, she "had no justifiable expectation that h[er] 'friends' would keep h[er] profile private . . ." U.S. v. Meregildo, 2012 U.S. Dist. LEXIS 115085, 2012 WL 3264501, at *2 (S.D.N.Y. 2012). In fact, "the wider h[er] circle of 'friends,' the more likely [her] posts would be viewed by someone [s]he never expected to see them." Id. Thus, as the Second Circuit has recognized, legitimate expectations of privacy may be lower in e-mails or other Internet transmissions. U.S. v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (contrasting privacy expectation of e-mail with greater expectation of privacy of materials located on a person's computer). (emphasis added)
While many courts have stated that Internet communications are less protected, I'm not convinced that you can fully analogize a Facebook posting to an email. Here's why: An email has no built in protection to prevent forwarding to third parties; Facebook does - you personally limit who can see what on your page, and that effort in and of itself shows a subjective intent to retain an expectation of privacy in those posts. It is not a difference in kind, and I would never argue it was, but the continual need to analogize differing internet communications to email to appeal to more settled court precedent is troublesome.

I'd like to reiterate that I am not arguing the information requested isn't germane to the case, indeed, it is likely so. But, sweeping under the rug the difference between Facebook and other electronic communications does a disservice to users of these sites. It also erodes the ability of an individual to protect their own privacy interests through use of privacy mechanisms employed by electronic services such as Facebook; what's the purpose of such mechanisms, if all communications on Facebook are essentially, if not explicitly, lumped together?

My favorite part of this ruling follows:
statements regarding plaintiff's social activities may be relevant to plaintiff's claims of emotional distress and loss of enjoyment of life. The postings may also provide information regarding potential witnesses with knowledge. Thus, plaintiff must disclose social media communications and photographs "that reveal, refer, or relate to any emotion, feeling, or mental state . . . [and] that reveal, refer, or relate to events that could reasonably expected to produce a significant emotion, feeling or mental state." Simply Storage, 270 F.R.D at 435-36; see also In re Air Crash, 2011 WL 6270189, at *6 (W.D.N.Y. 2011) (ordering disclosure of electronic communications, including social media materials, as they relate to decedent's domicile and claimants' loss of support claims). Likewise, photographs uploaded by plaintiff, as well as photographs uploaded by third parties depicting plaintiff are discoverable, while other photographs that have a more tenuous connection with the party are less likely to be relevant. Clearly, "pictures of the claimant . . . will generally be discoverable because the context of the picture and the claimant's appearance may reveal the claimant's emotional or mental status" while "a picture posted on a third party's profile in which a claimant is merely 'tagged' is less likely to be relevant." Simply Storage, 270 F.R.D. at 436.

Two comments: (1) "social media communications and photographs" that reveal or relate to "any emotion, feeling, or mental state" essentially comprises anything on Facebook. Short of a picture of a tree in a field, everything on Facebook has a "feeling" connotation. Even the picture of a tree just mentioned could show a "mental state" focused on "trees." Is that helpful? The court's words are just about as vague and unhelpful to what is within the scope of social media discovery as I have ever seen. (2) photographs uploaded by third parties depicting plaintiff are discoverable? Wow. What about if those photos contain locational EXIF data, or private information a third-party believed would remain within a small social sphere? Once again, I am not arguing this type of information may or may not be relevant, but some guidance by the court regarding third-party privacy should have been noted. I ardently ascribe to judicial precision and narrowness, but not when a few extra words would clarify an order which the court admits falls in an area of judicial and legal instability.


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