The Social Media Evidentiary Goldmine

Federal courts continue to open the door to mandatory disclosure of social media account information and content by litigants. The most recent example comes out of the Eastern District of New York, where the court found that publicly posted and available Facebook photographs and comments provide useful and admissible evidence of a person’s mental and emotional state, especially in a case where the plaintiff is claiming mental anguish resulting from an alleged episode of sexual harassment by employer.

That’s not necessarily news. What I found particularly interesting is that the Court noted that even if the Plaintiff used privacy settings allowing only her friends on Facebook to see postings, she had no justifiable expectation that her friends would keep her information to themselves. In other words, any postings on Facebook that are seen by others are fair game for discovery and review. This would include statements regarding an individual’s social activities, as well as other postings that might provide information regarding potential witnesses. Accordingly, the court ordered the plaintiff to disclose any social media communications or photographs that “reveal, refer, or relate to any emotion, feeling, or mental state; and that reveal, refer, or relate to events that could reasonably be expected to produce significant emotion, feeling, or mental state.”

That is an exceedingly broad disclosure. To make sure its ruling was clear, the court also ordered photographs uploaded to Facebook by the plaintiff and other third parties to be produced because they may reveal a claimant’s emotional or mental status.

This case and its rationale could open the doors to discovery of a lot of information that were previously closed. Normally, defendant employers could not get this kind of a look at the private musings of individuals and their friends, unless there was some separate indication that discoverable information was there. By acknowledging that Facebook contains snapshots of an individual’s current emotional state, the court has given employment defendants a valuable tool in assessing not only damages, but perhaps motivation and intent in employment cases.