Gather 'round kids, this one is interesting. The decision actually came out in May, 2010, and I regret that I haven't had a chance to blog on it until now, but it is still a very interesting order that should have implications to privacy litigation, and litigation in general. In EEOC v. Simply Storage Management, LLC, Docket No. 09-CV-01223, the Southern District of Indiana was faced with the issue of discovery of social networking profiles of two individuals that claimed sexual harrassment by a supervisor. In its discovery, the Company requested "electronic copies of ********'s complete profile on Facebook and MySpace (including all updates, changes, or modifications to *******'s profile) and all status updates, message, 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").. . . . " The EEOC went to the Court for guidance and the Court entered an order giving general guidelines, but determining that relevant portions of the social networking profiles were discoverable. Interestingly, the Court did not really address any privacy issues implicit in this request other than to reliance on two Canadian cases to establish that setting your profile to "private" is not a shield from discovery. The Court went on to provide the guidance that (1) any profiles, postings, or messages and applications are fair game; (2) third-party communications to the individuals must be produced if they place the claimants' own communications in context; (3) their photos and videos are fair game, but photos in which they are "tagged" are less likely relevant.
This is a very interesting case because it highlights the battle that is going to rage for years to come between the American jurisprudence viewpoint of discovery and the interest in privacy of what you post on the 'Net. "How much is too much in terms of what I post on a social networking site?" v. "If someone is posting it for everyone (or at least select everyone) to see, why can't I use it to prosecute or defend my lawsuit?" I wish I had the answer, but I think as privacy litigation and cloud computing law continue to evolve, these questions are going to become more prevalent.
Overall, I think Magistrate Lynch took a very reasoned approach to this problem. The issues raised in this case involve emotional distress, and the two claimants at issue both indicated that they had additional mental health traumas, above and beyond what one might "normally" expect in this type of case. Thus, if the question is "could the information shed some light on some aspect of this litigation" (which is always the question in discovery), then I think the answer has to be "Yes, it could be relevant to address those issues." It would be akin to a man claiming to have back pain arguing that photos of him water-skiing after the event in question aren't relevant. The simple fact is that our mental health and where we are emotionally is often evident in what we put on our social networking sites (as an aside, I will say that this is more true for some than others. Some people just need to stop posting things; but I digress). The items posted that show these claimants mental states are relevant. Now, the question of how relevant is still to be answered. If I'm the EEOC at this trial, I'm arguing that nobody posts things like "Today I was assaulted." or "I'm really depressed today because my supervisor assaulted me". For the most part, we sterilize (or most of us do) what we put into the 'Net. Thus, your social network profile is not an accurate snapshot of your emotional well-being.
To me, the more interesting question raised here is what happens when cloud computing law meets American discovery rules in the head-on, no-holds barred, death match that is coming. Things will be in the Cloud and there will be some passing relevance to an issue and then the fight will be on. The question in those cases, which I think is a question in this case as well, but that was not addressed by Judge Lynch, is the logistics of it all. Getting information back out of the Cloud, particularly archival information requires the cooperation of third-party entities and can be very burdensome and costly. Discovery is not meant to burdensome or overly complicated. Thus, we are going to be faced with issues of logistics that will need to be addressed. On top of that you add those pesky privacy litigation issue.
Of course, to bring this post to an actual close, this type of order is why I love these emerging legal questions that are derived from the advent and advancement of technology. There are so many facets to these issues and they strike at the heart of what we have always considered to be the core principles of litigation. But so long as you have parties either wanting money or wanting to avoid paying money, you will have zealous advocates turning over every stone to find the nuggets that make their case a win. And as the legal world polices itself, you will have these debates and conflicts over what is best for the individual case and what is best for the system overall. I think Judge Lynch's order alludes to and addresses both of those overarching concerns.
This is a very interesting case because it highlights the battle that is going to rage for years to come between the American jurisprudence viewpoint of discovery and the interest in privacy of what you post on the 'Net. "How much is too much in terms of what I post on a social networking site?" v. "If someone is posting it for everyone (or at least select everyone) to see, why can't I use it to prosecute or defend my lawsuit?" I wish I had the answer, but I think as privacy litigation and cloud computing law continue to evolve, these questions are going to become more prevalent.
Overall, I think Magistrate Lynch took a very reasoned approach to this problem. The issues raised in this case involve emotional distress, and the two claimants at issue both indicated that they had additional mental health traumas, above and beyond what one might "normally" expect in this type of case. Thus, if the question is "could the information shed some light on some aspect of this litigation" (which is always the question in discovery), then I think the answer has to be "Yes, it could be relevant to address those issues." It would be akin to a man claiming to have back pain arguing that photos of him water-skiing after the event in question aren't relevant. The simple fact is that our mental health and where we are emotionally is often evident in what we put on our social networking sites (as an aside, I will say that this is more true for some than others. Some people just need to stop posting things; but I digress). The items posted that show these claimants mental states are relevant. Now, the question of how relevant is still to be answered. If I'm the EEOC at this trial, I'm arguing that nobody posts things like "Today I was assaulted." or "I'm really depressed today because my supervisor assaulted me". For the most part, we sterilize (or most of us do) what we put into the 'Net. Thus, your social network profile is not an accurate snapshot of your emotional well-being.
To me, the more interesting question raised here is what happens when cloud computing law meets American discovery rules in the head-on, no-holds barred, death match that is coming. Things will be in the Cloud and there will be some passing relevance to an issue and then the fight will be on. The question in those cases, which I think is a question in this case as well, but that was not addressed by Judge Lynch, is the logistics of it all. Getting information back out of the Cloud, particularly archival information requires the cooperation of third-party entities and can be very burdensome and costly. Discovery is not meant to burdensome or overly complicated. Thus, we are going to be faced with issues of logistics that will need to be addressed. On top of that you add those pesky privacy litigation issue.
Of course, to bring this post to an actual close, this type of order is why I love these emerging legal questions that are derived from the advent and advancement of technology. There are so many facets to these issues and they strike at the heart of what we have always considered to be the core principles of litigation. But so long as you have parties either wanting money or wanting to avoid paying money, you will have zealous advocates turning over every stone to find the nuggets that make their case a win. And as the legal world polices itself, you will have these debates and conflicts over what is best for the individual case and what is best for the system overall. I think Judge Lynch's order alludes to and addresses both of those overarching concerns.
Powered by Compendium
Comments for Discoverability of social networking profiles in Federal court