Conducting “Traditional Relevance Analysis,” Court Denies Full Access to Plaintiff’s Social Networking Accounts

Giacchetto v. Patchogue-Medford Union Free School Dist., No. CV 11-6323(ADS)(AKT), 2013 WL 2897054 (E.D.N.Y. May 6, 2013)

In this case, the court conducted a “traditional relevance analysis” to assess Defendant’s request for broad access to Plaintiff’s social networking accounts and concluded that only limited discovery was appropriate.  Specifically, the court concluded that “unfettered access to Plaintiff’s social networking history will not be permitted simply because Plaintiff has a claim for emotional distress damages.”  Thus, the court ordered Plaintiff’s counsel to review Plaintiff’s postings and to produce those determined to be relevant, “keeping in mind the broad scope of discovery contemplated under Rule 26.”

Plaintiff claimed that Defendant discriminated against her because of her disability and alleged physical and emotional damages.  Accordingly, Defendant requested that Plaintiff provide “authorizations for the release of all records from Plaintiff’s social networking accounts” including Facebook, MySpace, and Twitter and argued that the information was relevant “because it reflects her ‘levels of social interaction and daily functioning’ and her ‘emotional and psychological state.’”  Plaintiff argued that the request was “based on pure speculation” and was “a fishing expedition.”  By the time the issue was before the court, Defendant had narrowed its requests, but continued to seek “postings about Plaintiff’s emotional and psychological well-being,” “postings about Plaintiff’s physical damages,” and “any accounts of the events alleged in Plaintiff’s Amended Complaint.”  The first request was the primary focus of the court’s analysis.

Addressing the relevant legal standards, the court first noted that relevance is construed broadly under Rule 26 and then clarified that the court’s analysis was unchanged by the fact that Defendant sought social networking information as opposed to “traditional discovery materials.”  The court went on to reason that “the ‘fact that the information [Defendant] seeks is in an electronic file as opposed to a file cabinet does not give [it] the right to rummage through the entire file’” and continued its discussion in footnote:

FN1. Some courts have held that the private section of a Facebook account is only discoverable if the party seeking the information can make a threshold evidentiary showing that the plaintiff’s public Facebook profile contains information that undermines the plaintiff’s claims.  This approach can lead to results that are both too broad and too narrow. On the one hand, a plaintiff should not be required to turn over the private section of his or her Facebook profile (which may or may not contain relevant information) merely because the public section undermines the plaintiff’s claims.  On the other hand, a plaintiff should be required to review the private section and produce any relevant information, regardless of what is reflected in the public section.  The Federal Rules of Civil Procedure do not require a party to prove the existence of relevant material before requesting it.  Furthermore, this approach improperly shields from discovery the information of Facebook users who do not share any information publicly.  For all of the foregoing reasons, the Court will conduct a traditional relevance analysis.

(Citations omitted.)

Turning to the issue of emotional damages, the court noted that courts have come to differing conclusions regarding the relevance of social networking postings with some finding them relevant and others questioning their probative value.  The court “agree[d] with the latter approach:”

This Court agrees with the latter approach.  The fact that an individual may express 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.  If the Court were to allow broad discovery of Plaintiff’s social networking postings as part of the emotional distress inquiry, then there would be no principled reason to prevent discovery into every other personal communication the Plaintiff had or sent since alleged [sic] incident. As explained by Magistrate Judge Francis in Rozell v. Ross–Holst:

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 might have talked to.

Thus, a plaintiff’s entire social networking account is not necessarily relevant simply because he or she is seeking emotional distress damages.

(Citations omitted.)

The court then turned to the distinction between “the relevance of social networking information to claims for physical damages and claims for emotional damages” and concluded that “[w]hile the relevance of a posting reflecting engagement in a physical activity that would not be feasible given the plaintiff’s claimed physical injury is obvious, the relationship of routine expressions of mood to a claim for emotional distress damages is much more tenuous.”

Ultimately, the court ordered production of “any specific references to the emotional distress [Plaintiff] claim[ed] she suffered or treatment she received” in connection with the alleged incidents, any postings referring to “an alternative potential stressor,” and any postings referring or relating to the events alleged in her Amended Complaint.  “However, unfettered access to Plaintiff’s social networking history” would not be permitted.

Addressing the method of production, the court saw “no basis” for going through a third party provider when Plaintiff had access to the requested information and ordered that Plaintiff’s counsel—and “not Plaintiff”—review Plaintiff’s postings for relevance, “keeping in mind the broad scope of discovery contemplated under Rule 26.”  Relevant posting were ordered to be produced.

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