by Tiffany S. Woods
Now that we are deeply engulfed in the digital age, there is ample information available to attorneys regarding emotional distress damages claimed by parties at the click of a button. One emergent source of such information is the numerous social networks that appear to be growing in numbers. The existence of social networks such as Facebook and MySpace makes the discovery of the emotional distress damages claimed by parties more easily accessible. However, this advancement of technology also gives birth to electronic discovery issues.
The recent discovery order set forth in EEOC v. Simply Storage Management is a great example of the electronic discovery issues that can arise with the use of social networks.
On September 29, 2009, the EEOC filed a complaint on behalf of two named claimants who alleged that they were subjected to sexual harassment during their employment with Simply Storage. After a round of preliminary motions, discovery ensued and Simply Storage’s request for production of documents included requests for “all photographs or videos posted by claimants or anyone on their behalf on Facebook or MySpace from the beginning of their employment to the present. Further, Simply Storage requested all updates, messages, wall comments, causes joined … activity streams … and applications, including the Naughty Application, for the same time period.
The EEOC objected to the production of all social network content and to any deposition questioning along these lines. The EEOC claimed that the requests were overly broad, harassing, not relevant, and infringed on the claimant’s privacy.
The court concluded that the production of certain information and pictures found on the social network sites is discoverable. The court recognized that a broad discovery of the claimants’ social network sites could reveal private information that may be embarrassing, but this is the inevitable result of alleging these types of injuries. The court ordered the EEOC to produce only content specifically related to the allegations in the complaint which would likely result in communications supportive of the claim made by claimant. Simply Storage was entitled to discover any “profiles, postings or messages … and applications from the date of the first allegedly harassing act through the present 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 claimants were also required to produce any pictures that they had posted on their sites, as the claimants appearance may reveal their emotional or mental status.
With the advancement of technology the discovery of information through social network sites requires the application of basic discovery principles in the novel area. Despite the popularity of social network sites and the frequency with which this issue might be expected to arise, there are remarkably few published decisions to provide guidance. This case presents a preview into the manner in which courts will rule on discovery regarding information on these social network sites. Discovery of this information will be allowed in instances where the parties make a claim for emotional distress damages.