Judge allows discovery of private Facebook postings and photos in sexual harassment case

In an order, found here: Reid v. Ingerman Smith, LLP (E.D.N.Y Dec. 27, 2012), Magistrate Judge Marilyn D. Go granted (and denied in part) a motion to compel discovery of plaintiff Reid's social media usage. The case itself revolves around a sexual harassment claim brought by Reid against Ingerman Smith for an incident while Reid was employed as a legal secretary. More details regarding the case can be found here (in an order to deny in part and grant in part a motion to dismiss the case, authored by Judge Glasser).

Judge Go agreed with the defendants that Reid's Facebook postings and comments on photographs placed on Facebook were relevant to whether Reid had actually experienced the emotional distress she claimed resulted from the sexual harassment. The court reviewed how other jurisdictions had dealt with similar questions, after observing that: "[a]lthough the law regarding the scope of discovery of electronically stored information ("ESI") is still unsettled, there is no dispute that social media information may be a source of relevant information that is discoverable." The ultimate issue, then, as summarized by the court:

The defendants argue that since postings and photographs from the public portions of plaintiff's Facebook account contain information that contradict plaintiff's claims of mental anguish resulting from the alleged sexual harassment by defendant Sadowski and termination of her employment, the non-public portions may also provide relevant information. Plaintiff responds that she should not be subject to broad discovery of the entirety of her social media account and be required to disclose private information.

I think any court facing this dilemma is trying to do two things: (1) facilitate discovery of information that is no doubt relevant to the claims in the case, but more importantly, (2) attempting to prevent further emotional damage to the plaintiff, whose privacy was already violated once by the sexual harassment, by limiting the reach of the prying inquiry requested by the defendant. I'm not necessarily convinced Judge Go achieved the second goal adequately. At least in the order, she exempted trivial personal information and photographs from birthdays, but did not really delineate what should be excepted. She offered stipulations at the end regarding discovery, but it remains to be seen if the scope will be as limited as she imagined with such a dearth of adequate guidance by the court.

The court summed up its thoughts as follows:

While plaintiff is correct that disclosure of her personal social media account may raise privacy concerns, such a consideration is more "germane to the question of whether requested discovery is burdensome or oppressive and whether it has been sought for a proper purpose" rather than to affording a "basis for shielding those communications from discovery." E.E.O.C. v. Simply Storage Mgmt., 270 F.R.D. 430, 434 (S.D. Ind. 2010). 

Even had plaintiff used privacy settings that allowed only her "friends" on Facebook to see postings, she "had no justifiable expectation that h[er] 'friends' would keep h[er] profile private . . ." U.S. v. Meregildo, 2012 U.S. Dist. LEXIS 115085, 2012 WL 3264501, at *2 (S.D.N.Y. 2012). In fact, "the wider h[er] circle of 'friends,' the more likely [her] posts would be viewed by someone [s]he never expected to see them." Id. Thus, as the Second Circuit has recognized, legitimate expectations of privacy may be lower in e-mails or other Internet transmissions. U.S. v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (contrasting privacy expectation of e-mail with greater expectation of privacy of materials located on a person's computer). (emphasis added)

While many courts have stated that Internet communications are less protected, I'm not convinced that you can fully analogize a Facebook posting to an email. Here's why: An email has no built in protection to prevent forwarding to third parties; Facebook does - you personally limit who can see what on your page, and that effort in and of itself shows a subjective intent to retain an expectation of privacy in those posts. It is not a difference in kind, and I would never argue it was, but the continual need to analogize differing internet communications to email to appeal to more settled court precedent is troublesome.

I'd like to reiterate that I am not arguing the information requested isn't germane to the case, indeed, it is likely so. But, sweeping under the rug the difference between Facebook and other electronic communications does a disservice to users of these sites. It also erodes the ability of an individual to protect their own privacy interests through use of privacy mechanisms employed by electronic services such as Facebook; what's the purpose of such mechanisms, if all communications on Facebook are essentially, if not explicitly, lumped together?

My favorite part of this ruling follows:

statements regarding plaintiff's social activities may be relevant to plaintiff's claims of emotional distress and loss of enjoyment of life. The postings may also provide information regarding potential witnesses with knowledge. Thus, plaintiff must disclose social media communications and photographs "that reveal, refer, or relate to any emotion, feeling, or mental state . . . [and] that reveal, refer, or relate to events that could reasonably expected to produce a significant emotion, feeling or mental state." Simply Storage, 270 F.R.D at 435-36; see also In re Air Crash, 2011 WL 6270189, at *6 (W.D.N.Y. 2011) (ordering disclosure of electronic communications, including social media materials, as they relate to decedent's domicile and claimants' loss of support claims). Likewise, photographs uploaded by plaintiff, as well as photographs uploaded by third parties depicting plaintiff are discoverable, while other photographs that have a more tenuous connection with the party are less likely to be relevant. Clearly, "pictures of the claimant . . . will generally be discoverable because the context of the picture and the claimant's appearance may reveal the claimant's emotional or mental status" while "a picture posted on a third party's profile in which a claimant is merely 'tagged' is less likely to be relevant." Simply Storage, 270 F.R.D. at 436.

Two comments: (1) "social media communications and photographs" that reveal or relate to "any emotion, feeling, or mental state" essentially comprises anything on Facebook. Short of a picture of a tree in a field, everything on Facebook has a "feeling" connotation. Even the picture of a tree just mentioned could show a "mental state" focused on "trees." Is that helpful? The court's words are just about as vague and unhelpful to what is within the scope of social media discovery as I have ever seen. (2) photographs uploaded by third parties depicting plaintiff are discoverable? Wow. What about if those photos contain locational EXIF data, or private information a third-party believed would remain within a small social sphere? Once again, I am not arguing this type of information may or may not be relevant, but some guidance by the court regarding third-party privacy should have been noted. I ardently ascribe to judicial precision and narrowness, but not when a few extra words would clarify an order which the court admits falls in an area of judicial and legal instability.

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Student's suit for forced Facebook disclosure survives motion to dismiss; court finds reasonable expectation of privacy in Facebook messages

In R.S. v. Minnewaska Area Sch. Dist. No. 2149, 2012 U.S. Dist. LEXIS 126257 (D. Minn., Sept. 6, 2012), a federal district court refused to dismiss the case of a 12-year-old against a Minnesota school district for allegedly punishing her for statements made on her Facebook wall and forcing her to disclose her Facebook password to search through her profile.  The case involves multiple causes of action, most of which survived the motion to dismiss, including the First and Fourth Amendment claims.

A summation of the facts can be found here: Minnesota girl alleges school privacy invasion, and here:
12-year-old sues school district over Facebook profile search and with a hat tip to the Student Press Law Center, the original complaint can be found here and its article here.

While the court only has one side of the story, currently, the facts are pretty favorable for the plaintiff as described. In quick summary, it does not appear that her comments meet the requirements of Tinker to regulate student speech, nor did the school have a compelling reason to search her Facebook account.

Addressing the Fourth Amendment claim, the court first noted the distinction between Facebook wall posts (which would receive less protection depending on the settings) and messages, and ultimately held that with respect to the student's messages and profile information:

Based on Plaintiffs' complaint, at least some of the information and messages accessed by the school officials were in R.S.'s exclusive possession, protected by her Facebook password. R.S. controlled those items until she involuntarily relinquished her password. As with a private letter, the content of R.S.'s electronic correspondence was available only to her and her correspondent. The Court concludes, based on established Fourth Amendment precedent, that R.S. had a reasonable expectation of privacy to her private Facebook information and messages.

The court went on to explicitly equate Facebook messages with email, stating that "[t]he Court agrees that one cannot distinguish a password-protected private Facebook message from other forms of private electronic correspondence."

Finally, the court detailed the contours of school searches - that reasonableness in that context is determined under a lower standard due to the school environment - balancing the students reasonable expectation of privacy against the "substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds." T.L.O. The court found nothing on the school's side of the scale to justify the search. The courts stated:

Based on the facts alleged in the complaint, the school officials had reason to believe that R.S. may have had a sex-related discussion with a classmate. Both R.S. and her classmate had already admitted as much to the school officials prior to the search. Plaintiffs contend that such an out-of-school discussion, even a "naughty" one, broke no law or school policies. 

At this stage, based on the facts alleged in Plaintiffs' complaint, the Court cannot disagree. It is difficult for the Court to discern what, if any, legitimate interest the school officials had for perusing R.S.'s private communications. . . . the school officials had no reason to believe that the search would return evidence of illegal behavior or violations of school policy. At this stage, there is no discernible school interest against which to balance R.S.'s reasonable expectation of privacy. 

I have to say, I am very interested to see the outcome of this case. I think the Fourth Amendment details are fascinating and I have paid close attention to First Amendment cases dealing with out-of-school speech so I'm hooked there, too.

If you are looking to brush up on recent school speech cases dealing with electronic speech and school intervention, look no further than the decisions of Layshock and J.S., recent cases from the Third Circuit which are laid out nicely in this student piece from the B.C. Law Review site by Paul Easton: SPLITTING THE DIFFERENCE: LAYSHOCK AND J.S. CHART A SEPARATE PATH ON STUDENT SPEECH RIGHTS.

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