Social Media Discovery in Employment Discrimination Cases
Courts recognize social media discovery is appropriate in employment discrimination cases because it may reveal evidence of a party's emotions, feelings and mental state, thus bearing on claims of damages for emotional distress.
May 08, 2015 at 06:32 AM
9 minute read
Traditionally, avenues of investigation related to a plaintiff alleging personal injury or emotional distress primarily utilized a private investigator and surveillance. While some cases may still warrant surveillance, often more fruitful investigation lies in social media. Social media such as Facebook, Instagram, Pinterest, Twitter, Tumblr and LinkedIn contain a wealth of information. The question presented is how to obtain social media discovery related to a litigant and what to do with it.
Discovery of social media information is no different than discovery of any other relevant information. Every state and federal court that has considered the issue has determined social media may be discoverable evidence. There are presently no New Jersey state court published or unpublished opinions on this issue. Virtually all courts that have addressed the issue have held determining the scope of permissible discovery of social media information simply “requires the application of … basic discovery principles in a novel context.” Thus, courts have generally “permitted discovery of social media records when it is reasonably calculated to lead to the discovery of admissible evidence.” Ogden v. All-State Career School, 299 F.R.D. 446, 448 (W.D.Pa. 2014).
Courts reject claims that social media accounts are private or there is a privilege or expectation of privacy precluding discovery even when it is partially or fully restricted to private access. Howell v. The Buckeye Ranch, 2012 WL 5265170, at *1 (S.D.Ohio); Romano v. Steelcase, 907 N.Y.S.2d 650, at 656-57 (NY Sup. Ct.); Zimmerman v. Weiss Markets, 2011 WL 2065410 (Pa. Com. Pl. 2011); McMillen v. Hummingbird Speedway, 2010 WL 4403285 (Pa. Com. Pl. 2010); Brogan v. Jenkins & Greenwald, 2013 WL 1742689 (Pa. Com. Pl. 2010) at *5. The fact that some content is private and other content is public is irrelevant. Patterson v. Turner Const. Co., 88 A.D. 3d 617, 618 (N.Y. App. Div. 1st Dept. 2011); Romano, 907 N.Y.S.2d at 654. In summary, social media is relevant and discoverable, when it is probative of a claim or defense in the litigation.
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