Quick Bytes: New Cases Addressing The Discovery Of Social Networking

Courts are issuing more decisions in the employment law context on the issue of whether an employee’s social networking activity can be discovered in a lawsuit between the two parties.   Two cases that were decided within the past few weeks offer a good illustration of the developing standards.

Howell v. The Buckeye Ranch (U.S. District Court, Southern District of Ohio)

The plaintiff/employee in Howell filed a sexual harassment lawsuit based on alleged inappropriate touching and sexual comments.   The defendant/employer filed an application with the court to compel the employee to disclose names and passwords for each social networking site she used.  The employer argued that the information was relevant to whether the alleged acts even happened, and to her current emotional state.   

While the court acknowledged that generally “information in the private section of a social media account is discoverable,” the court ruled that the employer’s request for free and unfettered access was overbroad:  “The fact that the information defendants seek is in an electronic file as opposed to a file cabinet does not give them the right to rummage through the entire file.”

Mailhoit v. Home Depot (U.S. District Court, Central District of California)

The plaintiff in Mailhoit also filed an employment discrimination case, in which the defendant/employer also asked the court to order the production of certain “profiles, postings or messages” from the employee’s social networking sites.   Notably, the employer supported its request by pointing to certain testimony at the employee’s deposition.   

The court noted that social media could be discoverable if the request contains “reasonable particularity” of what is actually being requested, and seeks information that is “reasonably calculated to lead to the discovery of admissible evidence.”    While the court found that generalized requests for certain postings allegedly relating to the employee’s emotional state did not meet those exacting standards under the facts of that case, the court did allow the employer to obtain from the employee all social networking communications (messages, wall postings, etc.) between the employee “and any current of former Home Depot employees, or which in any way refer . . . to her employment at Home Depot or this lawsuit[.]”

Employer Take Away:   What should you as an employer take away from this development?   

The courts’ decisions in Howell and Mailhoit represent two sides of the discovery spectrum, and offer two quick takeaway points:

            Point 1.            The trend continues to favor employers who seek to discover social networking posts by and involving the employees who sue them.   Subject to Point 2….

            Point 2.            You will be more likely successful in any request to the court if you can show that the requests made are narrowly-tailored, and are supported by evidence connecting the information you seek and your particular case, rather than a generalized feeling, suspicion, or hope that the social networking site “might have” some useful smoking gun.   Thus, generalized arguments might not work if they can be applied in virtually every action, and have no connection to the particular case before the court (i.e., we want to see if plaintiff denies the acts took place, or, we want to see if plaintiff acts happy in her social media activity).   On the other hand, showing a likelihood of a contradiction with prior testimony, or with a particular claim or statement made in your lawsuit, together with a narrowly crafted request that is not simply seeking “anything and everything” on Facebook, might do the trick.      

In short, setting the foundation during deposition questioning in the right case, and then properly tailoring your requests for social networking information, will go a long way to maximizing your success rate in obtaining something that may be of use in your lawsuit defense.

About The Author

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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