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eDiscovery Update: Fishing for Facebook facts

Peter Coons

Peter Coons

A recent employment discrimination matter out of the S.D. of Indiana (Appler v. Mead Johnson & Co., LLC) involved the discovery of social media evidence. That’s not unique, but what is thought-provoking is the court’s decision to allow the discovery of personal social media information from specific individuals employed by the defendant without a showing that relevant evidence may exist.

Some may call this a fishing expedition, but the court thought otherwise.

The claim, which was filed in December 2014, asserted that Appler was relieved of her position at Mead Johnson due to a sleep disorder.

“Plaintiff contends she was fired because of her narcolepsy or other sleep disorder and that Defendant refused to engage in an interactive process to determine appropriate accommodations as required by the ADA/ADAAA.”

As part of discovery, the defendants sought social media data from Appler. Defendants sought any “messages, photographs or videos posted on any social networking site including, but not limited to, Facebook, MySpace, LinkedIn, Vine, etc.” that related to this specific matter. Appler believed the request to be invasive and filed a Motion for Protective Order to limit the scope of discovery and countered with a request that mirrored that of the defendants. The request was directed at Appler’s immediate supervisor, Mary Engelland, and Christopher Bernfeld, a human resources representative of the company.

“Appler contends that these two individuals were key decision makers in the decision to terminate her employment. Mead Johnson filed a Motion for Protective Order, claiming that these requests are not seeking relevant information and that Engelland and Bernfeld’s privacy rights outweigh any discovery entitlements to the information.”

It’s interesting that both sides were seeking the same types of evidence and both were crying foul. Isn’t there an old saying, what’s good for the goose is good for the gander?

It seems the judge followed that line of reasoning and said as much when he stated “[t]he same legal standards apply to the analysis of Defendant’s Motion for Protective Order that also applied in Plaintiff’s previous Motion for Protective Order.” That seems impartial and judicious to me!

The court also opined that while the nature of social media evidence presents its own challenges, it is certainly discoverable, but not without limits. The judge stated that “[w]hile the relevancy bar for discoverable content is liberal, it is not limitless; the basic limits of discovery still apply.”

The court stated it was reasonable for defendants to seek social media information from the plaintiff and stated that the “content was particularly relevant because it was very likely to lead to admissible evidence regarding her disability and emotional distress claim.”

But what about Engelland’s and Bernfeld’s social media data? The plaintiffs were seeking “[a]ny comments made by them on social media regarding “Plaintiff directly, or expressing an animosity, hostility, or prejudice against, or amusement with or belittlement of, persons with disabilities in general” could, Plaintiff argues, “go a long way toward establishing, inferentially, that the adverse action against Plaintiff was motivated ‘because of’ her disability.”

Basically the plaintiff was searching for any jokes or comments Engelland or Bernfeld may have made about anyone with disabilities, not necessarily just Appler. The plaintiff did not have any evidence that either Engelland or Bernfeld had ever made such remarks on their personal social media site. To the contrary, both Engelland and Bernfeld stated in sworn testimony that no such evidence was ever created or existed. That didn’t stop the court from ruling that it “may” exist and therefore discovery should proceed with certain protections.

“Engelland and Bernfeld’s deposition testimony is not enough, in this case, to dispose of the conceivable need for at least some review of the SNS content Plaintiff has requested. Here, Plaintiff is looking for SNS content that would suggest the decision makers’ opinions on employees, people with disabilities, people who are late to work, and people with sleep disorders. These are fairly broad and vague categories. Reasonable people could differ on whether a particular comment was disparaging. Engelland and Bernfeld could have truthfully responded that they did not post, write, like, or share the type of content they were asked about, but Plaintiff’s view of their SNS content might produce a different opinion and, therefore, different results.”

The judge stated that discovery may not lead to direct statements about the Appler, but it may lead to discovery of seemingly innocent bread crumbs that help establish motivation for Appler’s firing such as the sharing of an article “questioning the existence of sleep disorders, posting disparaging comments about people who sleep later into the day, or complaining about Plaintiff in private messages.”

In conclusion – wow, I find this scary! Here we have an employment matter and two individuals provide sworn testimony that they don’t have any evidence related to the matter on their personal social media sites. The other side can provide no proof that they possess any material related to the matter. The court listens to the facts and basically concludes that despite the information sworn otherwise, the discovery should still proceed on the basis of counsel potentially still being able to find something relevant. Isn’t that the definition of a fishing expedition?

This is just one court in Indiana, but the takeaway is that personal social media sites may be fair game even if there is not a shred of evidence that they contain relevant material. If this is the future of discovery and you are an attorney: Should you be advising your corporate clients that their HR managers, supervisors or persons in managerial positions need to be mindful of articles they read and forward to others through Facebook? Should corporations start monitoring the social media sites controlled by their supervisory level staff to ensure they aren’t making off-color jokes or commenting on “politically incorrect” articles?

Do we all need to surrender to the fact that even everything we DON’T say as well as things we, post, click, like, poke, message, tweet, record or photograph on personal social media sites can be used against us in a court of law and the courts can compel discovery of our “private” information?

I often think that life was better before Facebook, but at least it gives me something to write about.

What are your thoughts on this topic?

Peter Coons is a senior vice president at D4, providing eDiscovery and digital forensics consulting services to clients. Peter is a Certified Information Systems Security Professional (CISSP), an EnCase Certified Examiner (EnCE), an Access Data Certified Examiner (ACE), and a Certified Computer Examiner (CCE). He belongs to various digital investigation and information security based organizations. Peter holds a master’s degree in Digital Forensics Management from Champlain College and a bachelor’s degree in Economics from the State University of New York at Oneonta.