A. General Principles Applicable to Discovery of SNS
The EEOC does not argue that Facebook and MySpace profiles contain no relevant
information. It insists, however, that production should be limited to content that directly
addresses or comments on matters alleged in the complaint. Simply Storage contends that the
nature of the injuries Ms. Zupan and Ms. Strahl have alleged implicates all their social
communications (i.e., all their Facebook and MySpace content).
Discovery of SNS requires the application of basic discovery principles in a novel
context. And despite the popularity of SNS and the frequency with which this issue might be
expected to arise, remarkably few published decisions provide guidance on the issues presented
here. At bottom, though, the main challenge in this case is not one unique to electronically
stored information generally or to social networking sites in particular. Rather, the challenge is
to define appropriately broad limits—but limits nevertheless—on the discoverability of social
communications in light of a subject as amorphous as emotional and mental health, and to do so
in a way that provides meaningful direction to the parties. The court will first outline the
principles it will apply in confronting this challenge.
1. SNS content is not shielded from discovery simply because it is
“locked” or “private.”
Although privacy concerns may be germane to the question of whether requested
discovery is burdensome or oppressive and whether it has been sought for a proper purpose in
the litigation, a person’s expectation and intent that her communications be maintained as private
is not a legitimate basis for shielding those communications from discovery. Two decisions
factually similar to this one have recognized this threshold point. See Leduc v. Roman, 2009
CanLII 6838 (ON S.C.), and Murphy v. Perger, 2007 WL 5354848 (ON S.C.). In these cases,
the courts held that a requesting party is not entitled to access all non-relevant material on a site,
but that merely locking2 a profile from public access does not prevent discovery either. See also
Mackelprang v. Fidelity Nat’l Title Agency of Nevada, Inc., 2007 WL 119149 (D. Nev. 2007).
As in other cases when privacy or confidentiality concerns have been raised, those interests can
be addressed by an appropriate protective order, like the one already entered in this case.
2. SNS content must be produced when it is relevant to a claim or
defense in the case.
Simply Storage argues that all the content of Ms. Zupan’s and Ms. Strahl’s social
networking sites is relevant, must be produced, and can be the subject of questioning during their
depositions. Although, as noted above, the contours of social communications relevant to a
claimant’s mental and emotional health are difficult to define, that does not mean that everything
must be disclosed. Simply Storage has cited one decision in which the court did require
production of the plaintiff’s entire SNS profile, but that case is distinguishable in a number of
ways. In Bass v. Miss Porter’s School, 2009 WL 3724968, *1 (D.Conn. 2009), the defendanthad served discovery requests much narrower than those Simply Storage has served. The
defendant in Bass had not asked for complete Facebook and MySpace profiles but for documents
related to the plaintiff’s alleged “teasing and taunting” and those representing or relating to
communications between the plaintiff and anyone else “related to the allegations in [the]
Amended Complaint.” Id. at *1. The court’s in camera review demonstrated that the plaintiff’s
choice of documents responsive to the defendants’ requests was vastly underinclusive. It
therefore overruled her “undifferentiated objection” and provided the complete Facebook profile
to the defendant. The discovery issue in this case is substantively and procedurally different.
Here, the parties have sought the court’s ruling on the EEOC’s objections before the production;
there is no contention that the EEOC’s production is deficient. The procedure employed in Bass
could be appropriate should a further dispute arise regarding the EEOC’s compliance with this
order, but the result in Bass does not convince the court that production of the claimants’
complete SNS content should be required in the first instance.
Moreover, the simple fact that a claimant has had social communications is not
necessarily probative of the particular mental and emotional health matters at issue in the case.
Rather, it must be the substance of the communication that determines relevance. See Rozell v
Ross-Holst, 2006 WL 163143 (S.D.N.Y. Jan. 20, 2006). As the Rozell court put it,
To be sure, anything that a person says or does might in some
theoretical sense be reflective of her emotional state. But that is hardly
justification for requiring the production of every thought she may
have reduced to writing or, indeed, the deposition of everyone she may
have talked to. Id. at *3-4.
For example, if a claimant sent a message to a friend saying she always looks forward to
going to work, the person to whom she sent the message and the substance of the message arewhat should be considered to determine whether the message is relevant. (And that message
would be relevant in this case.) But the mere fact that the claimant has made a communication is
not relevant because it is not probative of a claim or defense in this litigation. The Rozell
decision also notes, however, that the defendant may argue the absence of relevant
communications casts doubt on the plaintiff’s claims. See id. at *3.
3. Allegations of depression, stress disorders, and like injuries do not
automatically render all SNS communications relevant, but the scope
of relevant communications is broader than that urged by the EEOC.
In Mackelprang, 2007 WL 119149, the defendants had obtained the plaintiff’s public
MySpace profile after she had alleged sexual harassment claims against them. The court held
that the defendants could discover private messages exchanged with third parties that contain
information regarding her sexual harassment allegations or her alleged emotional distress. Id. at
*8. The court expressly ruled, however, that emails consisting of sexually explicit
communications between the plaintiff and third persons and that did not relate to her
employment with the defendants were not discoverable. Id.
A similar situation was presented in Rozell, 2006 WL 163143, at *3, where the court
rejected the defendants’ claim that the plaintiff who had alleged sexual harassment should
produce all of her email communications. When the plaintiff had complained about the
supervisor, the supervisor retaliated by hacking into her emails. The defendants had requested
the disclosure of all emails in the plaintiff’s account, but the court required production of only
the intercepted emails. Id. The court reasoned the contents of those emails were relevant to
assess plaintiff’s claimed damages. Id.
It is reasonable to expect severe emotional or mental injury to manifest itself in some
SNS 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. See Doe v. Smith, 470 F.3d 331, 341
(7th Cir. 2006). Thus, the court determines that some SNS discovery is appropriate here. The
next question is the permissible scope of that discovery.
The EEOC’s view that the claimants should be required to produce only communications
that directly reference the matters alleged in the complaint is too restrictive. This standard likely
would not encompass clearly relevant communications and in fact would tend only to yield
production of communications supportive of the claimants’ allegations. It might not, for
example, yield information inconsistent with the claimants’ allegations of injury or about other
potential causes of the injury. And although some employees may note occurrences of
harassment on their profiles, not many employees would routinely note non-events on their
profiles, such as, “My supervisor didn’t sexually harass me today.” A definition of relevant SNS
content broader than that urged by the EEOC is therefore necessary.
B. The Scope of SNS Discovery to Be Permitted in this Case
1. The Claimants’ Verbal Communications
With these considerations in mind, the court determines that the appropriate scope of
relevance is any profiles, postings, or messages (including status updates, wall comments, causes
joined, groups joined, activity streams, blog entries) and SNS applications for claimants Zupan
and Strahl for the period from April 23, 2007, through the present that reveal, refer, or relate to
any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to
events that could reasonably be expected to produce a significant emotion, feeling, or mental
state.
2. Third-party Communications
Third-party communications to Ms. Zupan and Ms. Strahl must be produced if they place
these claimants’ own communications in context.
3. Photographs and Videos
The parties have also raised the production of photographs depicting each of the
claimants or the pictures posted on their profiles in which they do not appear as an issue distinct
from the disclosure of communications. The same test set forth above can be used to determine
whether particular pictures should be produced. For example, pictures of the claimant taken
during the relevant time period and posted on a claimant’s profile will generally be discoverable
because the context of the picture and the claimant’s appearance may reveal the claimant’s
emotional or mental status. On the other hand, a picture posted on a third party’s profile in
which a claimant is merely “tagged,”3 is less likely to be relevant. In general, a picture or video
depicting someone other than the claimant is unlikely to fall within the definition set out above.
These are general guidelines provided for the parties’ reference and not final determinations of
what pictures must be produced consistent with the guidelines above.
Good material for the ol' brief bank.
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of a Whataburger fast-food restaurant. The agreement states that:
