Articles Posted in Attorney Practice Tips

Many times on this blog (e.g., here, here, and here), I’ve discussed the discovery of a plaintiff’s social media information in pending litigation. More often than not, these issues arise in personal injury actions where the defendant believes that the plaintiff’s injury isn’t as a severe as he claims it to be. So, it seeks access to plaintiff’s Facebook information where it believes it will find pictures of the plaintiff boozing or frolicking or what-have-you.

Although less common in employment discrimination cases, from time-to-time, social media discovery issues do crop up. I’ll discuss a new one decided late last month and offer some related tips for employers after the jump…

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I got this as a Google Alert on Monday. The case is Davids v. Novartis Pharmaceuticals Corp. Allow me to set the stage for you.

• • Plaintiff sues, claiming ongoing suffering from osteonecrosis of the jaw (if you click the link, don’t look at the picture on the right. Ewwwww)

• • Defendant corporation realizes that plaintiff has a Facebook account and serves a request for production of Facebook documents.

Well, at least that’s what a federal court recently told a defendant-employer in this ruling.

In Tompkins v. Detroit Metropolitan Airport, the plaintiff suffered a slip-and-fall and later claimed back and other injuries. She sued her employer, who subsequently demanded that Tompkins provide full access to her Facebook account. Acknowledging that Facebook information that a user shares only with a few Facebook friends may still be discoverable, the United States District Court for the Eastern District of Michigan, emphasized that there are limits to the Facebook discovery that a party may pursue:

[M]aterial posted on a “private” Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. [T]here must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.

What a whirlwind 12 months it’s been for Edith Employee! Or, should I say, Edith “former” Employee?

Last year, she was an employee for ABC Company. This year, she is suing ABC for sexual harassment. Among other things, Edith claims damages for physical and psychological injuries, including the inability to work, anxiety, post-traumatic stress disorder, and the loss of enjoyment of life.

And, right now, we find the parties entrenched in some scorched-earth discovery. ABC Company has just requested “all of plaintiff’s Facebook records compiled after the incidents alleged in the complaint, including any records previously deleted or archived.”

Can ABC do that? Will Edith have to turn over all of these records? The answer follows after the jump..

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