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

Authors: Aaron Warshaw (New York City), Allison E. Ianni (New York City)

Published Date: January 29, 2013

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.

Note: This article was published in the January 2013 issue of the New York eAuthority.

Aaron Warshaw  (New York City)

Aaron Warshaw
Aaron Warshaw is an experienced attorney who represents a diverse array of clients in labor and employment matters. He is one of the founding attorneys of the New York City office. Aaron’s first-chair experience includes representing Fortune 500 companies in single-plaintiff and class-action employment cases. He has actively litigated and appeared in many jurisdictions throughout New York State, including before state courts, federal courts, appellate courts, and administrative agencies....

Allison E. Ianni  (New York City)

Allison E. Ianni
Allison Ianni is Of Counsel in the New York City office of Ogletree Deakins, where she represents and advises management in all aspects of employment law. Ms. Ianni regularly defends employers against claims of discrimination, harassment, retaliation, and wage and hour violations, in state and federal courts and before administrative agencies and arbitration panels. In particular, she has represented clients in the media, higher education, insurance, hospitality, and consulting industries. Ms....