Social media websites like Facebook, Twitter and LinkedIn often contain an enormous amount of highly personal information. Lawyers frequently mine social media websites for relevant evidence to be utilized in court when users of social media are involved in lawsuits. In general, information contained in social media websites is not protected by legal privilege or privacy concerns. Rather, courts in many states have held social media information to be discoverable, although the law in this area is evolving.

A recent decision on the discoverability of information contained in social media websites was issued by a federal district court in California in Mailhoit v Home Depot U.S.A., Inc., (Docket No. No. CV 11-03892, C.D. Ca. Sept. 7, 2012). Mailhoit is an employment discrimination case in which plaintiff claimed that she suffered from “post traumatic stress disorder, depression and isolation, and has cut herself off from communication with friends” as a result of the wrongful acts of the defendant employer. In response, defendant sought the following documents from plaintiff’s Facebook and LinkedIn websites:

  1. Any profiles, postings or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) from social networking sites from October 2005 (the approximate date Plaintiff claims she first was discriminated against by Home Depot), through the present, that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff, as well as communications by or from Plaintiff that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state;
  2. Third-party communications to Plaintiff that place her own communications in context;
  3. Any pictures of Plaintiff taken during the relevant time period and posted on Plaintiff’s profile or tagged or otherwise linked to her profile; or
  4. All social networking communications between Plaintiff and any current or former Home Depot employees, or which in any way refer [or] pertain to her employment at Home Depot or this lawsuit.

Defendant argued that the social media communications sought were likely to contain relevant information because “in this day and age, many communications between friends and/or about an individual’s emotional state are communicated via social media,” and that such information may undermine plaintiff’s claims of isolation and loss of friendship.

Plaintiff objected to defendant’s discovery requests, arguing that the discovery sought was impermissibly overbroad. According to plaintiff, rather than tailor its requests, defendant sought “to rummage through the entirety of [plaintiff’s] social media profiles and communications in the hope of concocting some inference about her state of mind.” Plaintiff further argues that the requested discovery is unduly burdensome because she already testified about the  emotional distress she experienced.

Defendant filed a motion to compel plaintiff to respond to defendant’s Request for Production of Documents which requested information from plaintiff’s social media websites as set forth above.

The Court acknowledged that the content of social media websites may be discoverable, but noted rulings from several courts which concluded that the discovery rules do not grant “a generalized right to rummage at will through information that [a litigant] has limited from public view.” Rather, the rules governing discovery requests “require[] the requesting party to describe the items to be produced with ‘reasonable particularity’ and specify a reasonable time, place and manner for the inspection.  The test for reasonable particularity is whether the request places a party upon ‘reasonable notice of what is called for and what is not’.”

Ultimately, the Court found that “[the first] three of the four categories of [social media website] communications sought by defendant fail[ed] [the] ‘reasonable particularity’ requirement, and as such [were] not reasonably calculated to lead to the discovery of admissible evidence.” However, the Court ruled that Request No. 4 above, concerning communications “between plaintiff and any current or former Home Depot employees, or which in any way refer . . . to her employment at Home Depot or this lawsuit,” adequately placed plaintiff on notice of the materials to be produced and is reasonably calculated to lead to the discovery of admissible evidence. As a result, the Court granted defendant’s motion to compel with regard to Request No. 4, but denied defendant’s motion with respect to all other discovery requests.

The Mailhoit case is annexed hereto: Mailhoit v Home Depot U.S.A., Inc.