Electronic Discovery Law
Court Sees "No Principled Reason to Articulate Different Standards for the Discoverability of Communications through Email, Text Message, or Social Media Platforms."
Robinson v. Jones Lang LaSalle Americas, Inc., No. 3:12-cv-00127-PK (D. Or. Aug. 29, 2012)
Here, Defendant sought to compel production of discovery in several categories including “all social media content involving [Plaintiff] since July 1, 2008” that revealed or related to Plaintiff’s “‘emotion, feeling, or mental state,’ to ‘events that could be reasonably expected to produce a significant emotion, feeling, or mental state,’ or to allegations in [Plaintiff’s] complaint.”
Addressing the categories requested, the court indicated that it saw “no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.”
The court then turned to a discussion of EEOC v. Simply Storage Mgmt, 270 F.R.D. 430 (S.D. Ind. 2010) –“[t]he most frequently cited and well-reasoned case addressing the discoverability of social media communications involving emotional distress”—and noted that in that case, the court recognized, “in essence,” that “social media can provide information inconsistent with a plaintiff’s allegation that defendant’s conduct caused her emotional distress, whether by revealing alternate sources of that emotional distress or undermining plaintiff’s allegations of the severity of that distress.” Thus, in Simply Storage, broad discovery of the plaintiff’s social media content was allowed, even as to communications not referring to the events described in the plaintiff's complaint.
In the present case, the court acknowledged that Plaintiff had already agreed to provide social media content “directly referencing her allegedly discriminatory supervisor or ‘work-related emotions,’” but ordered significantly broader disclosure of both email and text communications and social media content, similar to the disclosure required in Simply Storage. Specifically, the court ordered production of:
(a) email or text messages that plaintiff sent to, received from, or exchanged with
any current and former employee of defendant, as well as messages forwarding such messages; or
(b) online social media communications by plaintiff, including profiles, postings,
messages, status updates, wall comments, causes joined, groups joined, activity streams, applications, blog entries, photographs, or media clips, as well as third party online social media communications that place plaintiff's own communications in context;
(2) from July 1, 2008 to the present;
(3) that reveal, refer, or relate to:
(a) any significant emotion, feeling, or mental state allegedly caused by defendant's conduct; or
(b) events or communications that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant's conduct.
Following some clarification of what sort of information the compelled production was intended to elicit, the court recognized (as did the court in Simply Storage) the impossibility of defining “the limits of discovery in such cases with enough precision to satisfy the litigant who is called upon to make a responsive production,” but nonetheless indicated its expectation that counsel would “determine what information falls within the scope of this court’s order in good faith and consistent with their obligations as officers of the court.”
A copy of the court’s order is available here.
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