In Equal Employment Opportunity Commission v. Simply Storage Management, L.L.C. and O.B. Management Services, 2010 U.S. Dist., LEXIS 527661, (“E.E.O.C. v. Simply Storage”) the United States District Court, Southern District of Indiana, was asked to decide a basic discovery issue in a novel context when the parties to this sexual harassment suit failed to agree on whether or not two claimants must produce internet social networking site (SNS) profiles and other communications from their Facebook and My Space accounts.
In this case, Simply Storage sought to discover from two employees claiming sexual harassment against their supervisors, one of whom claimed severe emotional distress and the other who claimed to suffer from depression and post traumatic stress disorder, all photographs and videos posted to their Facebook and My Space accounts, electronic copies, or alternatively hard copies, of their profiles which includes updates, messages, wall comments, causes/groups joined, activity streams, blog entries, blurbs, comments and applications. The EEOC objected to production on the grounds that the request was overbroad, not relevant, unduly burdensome, and improperly infringed on privacy and compliance would harass and embarrass the claimants. Simply Storage defended the request arguing that the claimants’ had put their emotional health at issue implicating all their social communications.
The Court ruled that the EEOC must produce relevant SNS communications in accordance with its guidelines noting first that SNS content is not shielded from discovery simply because it is locked or private. The Court found it reasonable to expect severe emotional or mental injury to manifest itself in some SNS content and determined that the scope of relevance is any profiles, posting, messages, photographs or videos etc. that reveal, refer or relate to any emotion, feeling or mental state or relate to events that could be reasonably be expected to produce significant emotion, feeling or mental state and that third party communications must be produced if they place claimants own communication in context.
While acknowledging the validity of the EEOC’s claim that the discovery request could reveal private embarrassing information, the Court reasoned that this is an inevitable result given the nature of the claimants’ allegations, and that production of the information sought was already shared with at least one other person by virtue of the medium used.
What is the wisdom to be gleamed from this decision? First and foremost, employees should be cognizant that they should have little, if any, expectation of privacy related to SNS profiles and communications notwithstanding any settings of locked or private. The key issue in any lawsuit of this nature will be the relevance of these communications and the proper scope of discovery. Generally, Courts will err in favor of disclosure taking into account general broad discovery rules and that these communications by design are meant to be shared. However, the granting in discovery does not necessarily mean the SNS information will be admitted at trial.
SNS users should be wary and post nothing that they would not want to be shared anywhere, anytime, and under any circumstances in the future.
 The Indiana District Court distinguished its case from the Connecticut case of Bass v. Miss Porter’s School, 2009 U.S. Dist., LEXIS 99916, in which the Connecticut District Court required production of the Plaintiff’s entire SNS profile after an in camera review of the discovery documents produced showed them to be underinclusive.