Discoverability of Social Media Postings
November 21, 2013
Elementary school teacher Theresa Giacchetto filed suit against the Patchogue-Medford Union Free School District in New York under the Americans with Disabilities Act alleging discrimination on the basis of her Attention Deficit Hyperactivity Disorder (ADHD). By discovery request, the school district sought release of all records from Ms. Giacchetto's social networking accounts. Ms. Giacchetto argued that the request was designed to harass, and this motion to compel followed. The case is Giacchetto v. Patchogue-Medford Union Free School District, 2013 WL 2897054, No. CV 11-6323 (E.D.N.Y.).
Specifically, the school district's motion to compel sought the following classes of information: (1) postings telling of Ms. Giacchetto's emotional and psychological well-being, (2) postings about her physical damages, and (3) any accounts of the events surrounding and alleged in her complaint. The question before the court centered on the first request: whether social networking postings were relevant in cases for emotional distress damages.
According to the federal rules governing discovery, parties “may obtain discovery regarding any nonpriviliged matter that is relevant to any party's claim or defense.” [Fed.R.Civ.P. Rule 26(a)(1)(B)]. Therefore, most discovery disputes hinge upon what is or is not relevant information. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. [Fed. R. Evid. 401.] Moreover, the United States Supreme Court has held that relevancy under Rule 26 should be construed broadly, giving the law teeth to achieve “disclosure of all the evidence relevant to the merits of the controversy,” whether such information would be admissible at trial. [Oppenheimer Fund, Inc., v. Sanders, 437 U.S. 340, 351 (1978) and Barrett v. City of New York, 237 F.R.D. 39 (E.D.N.Y. 2006).]
The school district claimed that Ms. Giacchetto's social networking postings were consequential to the outcome of the action because they revealed her capacity for social interaction and daily functions, as well as her psychological and emotional health. Ms. Giacchetto countered the request as overly broad, a fishing expedition intended to unnecessarily encroach upon her privacy in hopes of finding something that could be used against her.
Although courts have not yet conceded a majority decision regarding the relevance of social networking, the current trend steadily favors discoverability as society and technology become increasingly interlinked. This shift is expressed in the court's statement that the school district seeking social networking information as opposed to conventional discovery materials simply “requires the application of basic discovery principles in a novel context.” [Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566 (C.D.Cal. 2012).] In other words, the court's analysis of what is and what is not relevant evidence does not change.
Therefore, the court found it reasonable to anticipate that Ms. Giacchetto would manifest her alleged emotional injuries in some social media content outlet. Social media captures a tenuous diary of emotions and allows the user a stage by which to project his desired image to others; however, the court limited its ruling to certain postings. Accordingly, Ms. Giacchetto was ordered to produce any postings with specific references to the emotional injury or treatment she allegedly received in relation to her ADHD, but she was not compelled to produce her routine status updates or general communications. Finally, because Ms. Giacchetto sought emotional damages, the court ruled she must produce any postings on social networking sites that indicate to an “alternative potential stressor.”
Editor's Note: The Pew Research Center's Internet & American Life Project Spring Tracking Survey found that 72 percent of adults use social networking sites and that for millennials (the generation born between the early 1980s and the early 2000s) and beyond, social networking is an embedded, life-long habit. This case highlights an important distinction between the discoverability of social network postings to claims for physical damages as opposed to emotional damages. Postings that express one's mood or mental or emotional health are not obvious in relationship to the claimed injury, unlike postings depicting engagement in a physical activity that would be impracticable given the plaintiff's alleged physical injury. Therefore, industry professionals should use the court's analysis here to evaluate potentially relevant networking information for discovery in claims of emotional injury.