In Babbitt v. Koeppel Nissan, Inc., 2019 WL 3296984 (EDNY July 23, 2019) – an employment discrimination, sexual harassment, and retaliation case brought under Title VII of the Civil Rights Act of 1964 – the court ruled on the parties’ respective motions to compel discovery.
One issue addressed by the court – which has become increasingly prevalent in recent years – is the extent to which defendants may obtain discovery of plaintiff’s “social media” posts.
The court summarized defendants’ discovery demands of these materials as their request for
social networking information that reveals, refers, or relates to (1) 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) your efforts to secure other employment; (3) your employment with Koeppel Nissan, Inc.; (4) your claims against Defendants; (5) you socializing with employees of Koeppel Nissan, Inc. outside of work; and (5) your romantic relationships with employees of Koeppel Nissan, Inc.
Plaintiff objected to this request, asserting that it was “vague, unduly burdensome, and an undue invasion of her privacy” and that “courts have held that social media posts are not discoverable unless defendants demonstrate that public posts contradict plaintiff’s claims.”
The court summarized the law, in part, by reference to two Eastern District Cases:
In Reid v. Ingerman Smith LLP, while the court did not require the defendant to make a threshold showing that the public posts contradicted the plaintiff’s claims, it is clear that the Court considered the public posts in concluding that the private postings may also be reflective of the plaintiff’s emotional state. 2012 WL 6720752, at *1.
By contrast, in Giacchetto v. Patchogue–Medford Union Free School District, the court addressed the defendants’ request for all of the plaintiff’s social media postings. 293 F.R.D. 112 (E.D.N.Y. 2013). The Court noted that an individual’s “express[ion of] some degree of joy, happiness, or sociability on certain occasions sheds little light on the issue of whether he or she is actually suffering emotional distress.” Id. at 115. In that case, the court denied the defendants’ request for all posts, but directed the plaintiff to produce posts containing “specific references to the emotional distress she claims she suffered or treatment she received in connection with the incidents underlying her Amended Complaint.” Id. at 116. The court also ruled that because the plaintiff sought emotional distress damages, “any postings on social networking websites that refer to an alternative potential stressor” to the alleged discrimination had to be produced.
Applying the law, the court found persuasive the reasoning in the Giacchetto case, and directed plaintiff “to produce posts containing specific references to the emotional distress she claims she suffered or treatment she received in connection with the incidents underlying her Second Amended Complaint” and “since plaintiff is seeking emotional distress damages … to produce any postings on social networking websites that refer to an alternative potential stressor to the alleged discrimination.”
In a footnote, the court noted its disagreement with the reasoning in the Reid case “insofar as it suggests that such a broad disclosure of anything that reveals an emotional state is not overly broad”, reasoning that “[v]irtually every post on social media can relate to an emotion, feeling, or mental state, or can relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.”