Friday, December 7, 2012

Discovery of Facebook Posts Is No Longer A Given

A very hot issue is how extensively lawyers can use discovery to probe someone’s social media. A federal district court in California holds that there are limits on this sort of discovery. From ABA’s Litigation News (excerpts) 

In Mailhoit v. Home Depot, U.S.A., Inc., [PDF] the district court refused to compel the production of a party’s Facebook posts and photos. The plaintiff alleged that her former employer had terminated her because of a disability, causing her to suffer depression-related symptoms. The former employer denied causing the damages, arguing that the plaintiff maintained a Facebook account and that the publicly available information from that account undermined her claims of isolation and loss of friendship.

The employer wanted to discover the individual’s private posts and photos, as well as other social media, to test her claims for emotional damages. It sought discovery of any social media postings that related to her emotional state. It also sought any third-party communications that placed her postings in context, any communications with current or former employees, and any pictures taken of her over a seven-year period.

The district court rejected all of the requests except for the communications with employees. The key factor for the district court’s decision was the burden that would be placed on the plaintiff to respond to the requests, stating that “[t]he language of the request does not provide sufficient notice to the responding party of what could be considered responsive material.”

The court also expressed concern about privacy issues triggered by the discovery requests, reasoning that a party does not have a “generalized right to rummage” through private posts. For these privacy-related requests, the court stated that a party must first show that the information is calculated to lead to admissible evidence.

Again, these cases prompt us to warn students about what they post on social media.


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