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.

Making the Other Side Pay

One of the maddening inequalities in employment litigation is the fact that attorneys fees are routinely awarded as part of damages to a successful plaintiff; a successful defendant must bear its own attorney expenses and normally is only entitled to recover so-called "costs", typically things like filing fees, or document copying expenses. Only in the rare case are recoverable costs significant enough to offset in any meaningful way the attorney expenses borne by a successful defendant. The unfortunate truth is that a plaintiff's attorneys fees are often a significantly greater financial threat than the award of back wages, or other compensatory damages, and can be a major factor for defendants in determining whether to move forward with the case, or simply settle to avoid the risk of a large award.

Electronic discovery, however, offers opportunity for defendants to level this playing field a little. Several recent cases, admittedly in more commercial settings, have held that a prevailing defendant is entitled to recover its electronic discovery costs, including the costs associated with converting electronic data into mutually usable file formats, and costs associated with electronic discovery project management.

Now the typical employment case does not involve the production of thousands of pages of information, or require significant e-discovery efforts. But in situations where a defendant is opposing a class-action with several hundred or even several thousand potential plaintiffs and their associated personnel files or wage payment records, recoverable e-discovery costs could easily top $30-$40,000. Confronting an employment plaintiff with a threat of having to pay that amount in the event of a loss would be a powerful tool for settlement purposes.

Several examples are here and here. And this case actually involved an employment claim; the defendants sought the award of discovery costs to potentially offset any award of attorneys fees as a result of the plaintiff's successful ERISA claim.

So keep track of e-discovery efforts and costs in litigation--they might be as useful a lever for resolution as a piece of important evidence.