Court Allows Use of Facebook, MySpace Communications

In another example of how the courts continue to struggle with the legal implications of the wildly popular social networking trend, U.S. Magistrate Debra McVicker Lynch of the U.S. District Court for the Southern District of Indiana ruled that the two women’s Facebook and MySpace communications could be relevant to their harassment allegations.

Lynch agreed with lawyers for defendant Simply Storage Management that communications plaintiffs Tara Strahl and Joanie Zupan had on their Facebook and MySpace pages could help uncover what happened to them.

“It is reasonable to expect severe emotional or mental injury to manifest itself in some SNS (social networking site) content and an examination of that content might reveal whether onset occurred, when, and the degree of distress,” Lynch wrote in one of two orders issued earlier this year dealing with the issue. “Further, information that evidences other stressors that could have produced the alleged emotional distress is also relevant. Thus, the court determines that some SNS discovery is appropriate here.”

So Lynch ordered that the defense lawyers be presented with “any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS applications for claimants Zupan and Strahl for the period from April 23, 2007, through the present 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.”

Lynch set up a detailed process during which the documents produced by the Facebook and MySpace sites will be reviewed to make sure they are relevant to the case.

Zupan and Strahl were among a group of plaintiffs involved in the suit filed last year alleging the women had been sexually harassed by the firm’s property manager for its Central Indiana locations. The suit was filed by the Equal Employment Opportunity Commission (EEOC) against the Orlando-based Simply Storage on the women’s behalf.

'Naughty Application' 

The pre-trial discovery controversy erupted when Simply Storage lawyers demanded regarding both Zupan and Strahl from their Facebook and MySpace accounts “all status updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments, and applications (including, but not limited to, ‘How well do you know me’ and the ‘Naughty Application’).”

In all, the defense subpoenaed records from Facebook and MySpace.com for all of the EEOC’s claimants/plaintiffs including user profiles; status updates; photographs or videos posted; messages received; and the transcripts of online chats for the period from September 2005 to the present and requested the same from the class members themselves. According to court records, the two sides agreed on the information requests for all the women except Zupan and Strahl; it was not immediately clear why Zupan and Strahl’s cases differed from those of the other EEOC claimants.

In her order granting the Simply Storage Management Facebook and MySpace access request, Lynch noted that she had scant legal precedent to refer to in reaching her ruling.

“(Pre-trial) discovery of SNS requires the application of basic discovery principles in a novel context,” she wrote. “And despite the popularity of SNS and the frequency with which this issue might be expected to arise, remarkably few published decisions provide guidance on the issues presented here. At bottom, though, the main challenge in this case is not one unique to electronically stored information generally or to social networking sites in particular. Rather, the challenge is to define appropriately broad limits—but limits nevertheless—on the discoverability of social communications in light of a subject as amorphous as emotional and mental health, and to do so in a way that provides meaningful direction to the parties.” 

Novel Questions 

As examples of some of the new questions the case presented, Lynch noted:

• That simply “locking” an SNS does not mean the person posting it cannot be forced to turn over the site’s content in court. The SNS providers typically allow users to block access unless they grant permission for it to be opened. “Although privacy concerns may be germane to the question of whether requested discovery is burdensome or oppressive and whether it has been sought for a proper purpose in the litigation, a person’s expectation and intent that her communications be maintained as private is not a legitimate basis for shielding those communications from discovery,” the court noted.
• That it can be difficult to mount a successful defense against a pre-trial discovery request on invasion of privacy grounds in an SNS context. “…the court finds that this concern is outweighed by the fact that the production here would be of information that the claimants have already shared with at least one other person through private messages or a larger number of people through postings. As one judge observed, ‘Facebook is not used as a means by which account holders carry on monologues with themselves.’,” Lynch wrote.
• That SNS photos may reveal information relevant to a court proceeding. “For example, pictures of the claimant taken during the relevant time period and posted on a claimant’s (SNS) profile will generally be discoverable because the context of the picture and the claimant’s appearance may reveal the claimant’s emotional or mental status,” Lynch wrote. “On the other hand, a picture posted on a third party’s profile in which a claimant is merely ‘tagged,’ is less likely to be relevant.” The SNS systems typically allow users to post photos in which they identify the participants and copies of the photos are then duplicated on the identified person’s own user page.

Lynch's latest ruling is here.