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Can Employers Discover Social Media From a Plaintiff in a Harassment Suit? It Depends

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Recently, the U.S. District Court for the District of Connecticut denied in part an employer’s motion to compel the plaintiff to provide access to her social media accounts. The case, Marsteller v. Butterfield 8 Stamford LLC, involved sexual harassment under Title VII where the plaintiff alleged that her coworkers “repeatedly sexually harassed her, watched her changing her clothes on a company security camera in a private office, and showed the video of her changing clothes to other employees. . .” No. 3:14CV01371(AWT), 2017 WL 5769903, at *1 (D. Conn. Nov. 27, 2017). As a result, the plaintiff alleged that she suffered from “severe emotional distress.” Id.

It is no revelation that the district court denied what it called a “wholesale invasion of [the plaintiff’s] privacy” and a prime example of a “fishing expedition.” Id. at *4. But, in granting the employer’s request for copies of social media materials relating to “the Incident as alleged in the Complaint,” the district court alluded to the idea that a defendant could seek information about a plaintiff’s mental or emotional state generally by requesting “social media communications and photographs that reveal, refer or relate to any emotion or feeling or mental state of the [p]laintiff.” Id.

The U.S. District Court for the District of Connecticut is not alone. Several other courts, including the U.S. District Court for the Southern District of Indiana, for example, have held that the appropriate scope of relevance for claims beyond “garden variety emotional distress claims” is “any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and [social networking site] applications [for the relevant time frame] 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.” EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 433, 436 (S.D. Ind. 2010); see also D.O.H. ex rel. Haddad v. Lake Cent. Sch. Corp., No. 2:11-CV-430, 2014 WL 174675 (N.D. Ind. Jan. 15, 2014).

In today’s world—where people disclose what they had for breakfast—the possibility is high that an inattentive plaintiff would post, tweet, or pin about events and their mental or emotional states. Given the current trend, employers defending against harassment suits where “severe emotional distress” is alleged may wish to make it a habit to seek discovery on social media—so long as the requests are appropriately tailored.