Employer Sued for Harassment May Discover Plaintiff’s Social Networking Site Postings

As employers are faced in the great majority of discrimination, harassment and whistle-blowing cases with claims by employees of emotional distress, employers should keep in mind that potentially fruitful sources of valuable information to defend against such claims may be the social networking sites (“SNS”) maintained by the employees bringing these claims. In EEOC v. Simply Storage Management, L.L.C., 2010 U.S. Dist. LEXIS 52766, the EEOC brought suit in federal court in Indiana alleging that Simply Storage was liable for the sexual harassment of a number of its employees. The EEOC asserted that while three of these claimants had suffered “garden variety” emotional distress that was not ongoing, two claimants had suffered more serious emotional injuries for which they had sought medical treatment and that one claimant had been diagnosed with post traumatic stress disorder. Both of these employees maintained SNS accounts on Facebook and MySpace. Maintaining that information on these sites was relevant to the employees’ emotional distress claims, Simply Storage sought discovery of the their complete profiles on these sites, as well as all photos and videos posted on the sites.

The Court ruled that some SNS discovery was appropriate, as it:

is reasonable to expect severe emotional or mental injury to manifest itself in some social content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress. Further, information that evidences other stressors that could have produced the alleged emotional distress is also relevant.

Thus the Court ordered the EEOC to produce all SNS profiles, postings, or messages for the two employees for the prior 3 years “that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.” The Court also ordered the EEOC to produce all photos of the two claimants for the same time period, “because the context of the picture and the claimant’s appearance may reveal the claimant’s emotional or mental status.” In response to the EEOC’s concerns about “privacy,” the court ruled that these concerns could be addressed through a protective order.

Simply Storage is the most recent of only a handful of cases dealing with SNS discovery, and this is clearly a developing area of employment law. Thus, while the employer in Simply Storage sought SNS data relevant to the issue of emotional distress, employers should not hesitate to seek SNS data relevant to other issues raised by the claims or defenses in suit.