E.D.N.Y. Rules That Private Postings on Social Media Relating to Plaintiff’s Mental State Are Fair Game for Discovery

Reid v. Ingerman Smith LLP, No. 12-CV-0307(ILG-MDG) (E.D.N.Y. Dec. 27, 2012): In a sexual harassment lawsuit where the plaintiff sought emotional damages, the defendant filed a motion to compel discovery concerning the plaintiff’s social media accounts. The defendant argued that public postings on the plaintiff’s Facebook account contradicted her claim of mental anguish, and therefore any private postings and photographs might contain information relevant to the plaintiff’s state of mind. The plaintiff argued that she had an expectation of privacy with respect to her social media accounts and that the court should not require her to produce private information. While the court agreed that the plaintiff had some expectation of privacy, it explained that this expectation did not shield relevant communications from discovery. The court therefore ordered that the plaintiff disclose all communications and photographs that “reveal, refer, or relate to any emotion, feeling, or mental state . . . [and] that reveal, refer, or relate to events that could reasonably [be] expected to produce a significant emotion, feeling[,] or mental state.” However, the court held that the plaintiff need not disclose her private postings in full, and could withhold postings that have no bearing on her emotional state, such as posts of events concerning others. This decision reinforces the growing impact of social media on employment litigation and the importance for employers to incorporate social media communications into discovery requests.