All information from plaintiffs’ social networking profiles and postings that relate to their general emotions, feelings, and mental states must be produced in discovery when they allege severe emotional trauma and harassment against their employer, a federal court in Indiana has ruled. (EEOC v. Simply Storage Management LLC, S.D. Ind., No. 1:09-cv-1223, discovery order 5/11/10).

Social networking sites (SNS) such as Facebook and MySpace are fast becoming a hot topic in litigation as they may contain a wealth of potentially relevant information. In Simply Storage, the Equal Employment Opportunity Commission brought suit on behalf of plaintiffs and other similarly situated employees who claimed their employers were liable for a supervisor’s alleged sexual harassment. The EEOC requested a discovery conference because counsel for the parties disagreed as to whether the two named plaintiffs must produce the Internet social networking site profiles, including postings, pictures, blogs, messages, personal information, lists of “friends,” and of causes joined that the user has placed or created online.

The EEOC objected to production of all SNS content (and to similar deposition questioning). It argued the requests were overbroad, not relevant, unduly burdensome (because they improperly infringe on claimants’ privacy), and would harass and embarrass the claimants. Simply Storage countered that discovery of these matters was proper because certain EEOC discovery responses placed the emotional health of particular claimants at issue, beyond that typically encountered in “garden variety emotional distress claims.”

The court weighed ordering complete discovery of the plaintiffs’ Facebook and MySpace account information against limiting discovery to content specifically related to the alleged injury.  It found neither alternative satisfactory. According to the court, limiting discovery to posts that specifically referenced the mental issues and harassment alleged by the plaintiffs would be too narrow, while admitting the full profiles would include likely irrelevant—and potentially inflammatory—content. The court held, “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.”

The court therefore defined the relevant scope of discovery as including “any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) … 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.”

The court rejected the EEOC’s assertion that broad discovery of this kind would violate the plaintiffs’ right to privacy and held that, while potentially relevant content may be embarrassing to the plaintiffs, “this is the inevitable result of alleging these sorts of injuries.” In addressing the argument that the profiles were “private” and password protected, the court held that these protections were insufficient to circumvent discovery. “[A] person’s expectation and intent that her communications be maintained as private is not a legitimate basis for shielding those communications from discovery.”

This case illustrates the importance of expanding the traditional thinking behind discoverable information to cover social media. Employers, upon advice of counsel, should consider requesting information of this nature. 

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Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix…

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix of laws governing privacy, security, and management of data. Mr. Gavejian is Co-Editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Mr. Gavejian’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Mr. Gavejian helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Mr. Gavejian assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Mr. Gavejian represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. Mr. Gavejian negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Mr. Gavejian represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. Mr. Gavejian regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Mr. Gavejian’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Mr. Gavejian’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Mr. Gavejian regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Mr. Gavejian is the Co-Chair of Jackson Lewis’ Hispanic Attorney Resource Group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. Mr. Gavejian also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Mr. Gavejian served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.