Regulating Social Media Discovery | DCR Workforce Blog

Regulating Social Media Discovery

social media regulationAs we have all seen in the news, every one of the Whatsapp messages exchanged between Oscar Pistorius and his girlfriend (whom he shot to death in alleged self-defense) – has become a matter of public record and scrutiny. Privacy of personal information is generally taken as a right and privilege of human existence. But, there is no inviolable rule that one’s privacy will be protected at all times and in every context. Let us look at the circumstances in which one will be exposed to social media discovery and universal attention.

According to U.S. law, relevant information – in the form of social media content – can be sought, using a discovery request, during litigation. Courts do not allow blanket access to anyone’s profile content or postings. Any request for such access has to be relevant to the issue at hand and there must be reasonable cause to believe that the materials are particularity promising as admissible evidence. Any request which cannot validate the need for such access to social media accounts is called a ‘fishing expedition’ and disallowed. Courts will also limit the discovery, when the burden of proposed discovery outweighs the likely benefits.

This creates a dilemma. How can one know and demonstrate that anyone’s social media content contains information which will be relevant to a case– without knowing what the account contains? When an employee or customer alleges physical or emotional injury, emotional or sexual harassment, stress, or PTSD, such a claim automatically makes the plaintiff’s social media account relevant to the issue and a target for discovery.

Let us look at some cases in which social discovery has played a significant role in employment-related cases:

  • When someone intentionally withholds, hides, alters, or destroys evidence relevant to a legal proceeding by deleting social media postings or profile information which contradict their claims against an employer, the courts do not react kindly when they find out. In Painter vs. Atwood, the plaintiff had destroyed Facebook posts and photographs, attracting the ire of the court..
  • Portions of every social media account are public, and if the information they contain throws an iota of doubt against the claims made by the person in a matter under litigation; the non-public contents of the account become the subject of a discovery request. In Zimmerman vs. Weis Markets a forklift operator claimed injuries which hurt his leg so badly that he had to hide it, out of embarrassment. When the court was presented proof that the public portions of his Facebook and MySpace profiles carried pictures of him wearing shorts and performing stunts on a motorcycle, the defendant’s request for access to the non-public portions was granted without further ado.
  • The Jewell v. Aaron’s Inc., case underscores the importance of seeking access only to information that is directly relevant. In response to a claim by workers that their employer was not paying them for time spent working during lunch breaks, the employer’s attorneys requested access to all social media postings made during work hours over a period of four years by 87 randomly selected employees. The employer argued that some of these posts “may” provide relevant evidence that workers were not actually conducting work at times throughout the day. The court rejected the request.
  • When claiming distress, plaintiffs have opened the door to a serious evaluation of other potential causes of distress in their lives, as in the case of Giacchetto vs. Patchogue-Medford Union Free School District. In this case, a teacher who had been diagnosed with attention deficit hyperactivity disorder filed suit against her employer for allegedly discriminating against her based upon her disability. She also alleged she suffered from emotional distress damages as a result of the defendant’s conduct. The school district sought access to all of the plaintiff’s social media postings, but the court refused to accept that routine status updates and communications on social sites are reflective of one’s ongoing emotional state. The plaintiff was directed to provide access to any posts that specifically referenced the alleged emotional distress, the treatment for her condition, or anything pointing to an alternative source of extreme emotional distress. .
  • In a class action context alleging sexual harassment in EEOC vs. Original Honeybaked Ham of Ga., the court appointed a forensic expert to review each Facebook account for relevant information, before producing only that portion to the defendant.

Between the Stored Communications Act and the restriction on e-discovery without justification; social media accounts are well protected.   Employees should use good judgment when posting to social sites. Employers must be equally careful in attempting to access this information. The courts are increasingly aware of the significance of social media postings in civil litigation. Case law regarding the pursuit and preservation of information posted online or in social media sites is growing. Seek legal assistance if you have questions regarding the legality and appropriateness of your company’s policies and actions.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.