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Anything you tweet may be used against you...

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Millions turn to Facebook and Twitter to constantly update friends and family about what’s happening in their personal and professional lives. But as those instant updates become a staple in people’s lives, those social media networks are becoming a more common part of the litigation process in state and federal courts.

In Indiana, U.S. Magistrate Judge Debra McVicker Lynch ventured onto that front earlier this year in an employment sexual harassment case. She allowed the defense to have broad access to the plaintiffs’ social network sites as discovery about their mental states, and held specifically that any privacy concerns by the employees about releasing a full array of online social media information were overridden by the fact that plaintiffs had already shared the information “with at least one person.”
 

debbie lynch Lynch

The ruling is one that employment attorneys say they haven’t seen before in Indiana, but one that’s only likely to become more common as social media use and discovery ramps up.

“Her order is very interesting and certainly very timely, because if we haven’t already, we all are going to have to start dealing with social media discovery issues more in the future,” said Baker & Daniels partner Stuart Buttrick, who closely followed this case and issue. “This is a really big deal and the first of its kind in our jurisdiction.”

In this case of EEOC v. Simply Storage Mgmt., LLC, No. 09-1223, the Equal Employment Opportunity Commission had sued on behalf of two female self-storage firm employees, targeting the property manager and associate manager at the business. The suit contends that the two employees and other similarly situated female employees were subjected to unwelcome sexual groping, sexual assault, and sexual comments by the male property manager. The two females alleged that the sex harassment resulted in severe emotional distress, and that became the litigation point in federal court.
 

Buttrick Stuart Buttrick

Hitting at the two females’ mental state, the defense requested extensive information from their social media accounts and wanted as discovery all profiles, status updates, wall posts, groups joined, causes supported, photos, applications, and the like that “reveal, refer or relate to any emotion, feeling or mental state, as well as communications that reveal, refer or relate to events that could reasonably be expected to produce a significant emotion, feeling or mental state.”

The EEOC objected, arguing that they should only have to produce information directly referencing the sexual harassment allegations. But with her May 11 order that followed a conference the previous month, Magistrate Judge Lynch ordered that the two women turn over that online information from their Facebook and MySpace accounts. She ruled the EEOC’s view is too restrictive, and limiting what’s available could create a standard that likely wouldn’t include every clearly relevant communication.

“It might not, for example, yield information inconsistent with the claimants’ allegations of injury or about other potential causes of the injury,” the magistrate wrote. “And although some employees may note occurrences of harassment in their profiles, not many employees would routinely note non-events on their profiles such as, ‘My supervisor didn’t sexually harass me today.’ A definition of relevant SNS content broader than that urged by the EEOC is therefore necessary.”

Her ruling relied largely on two Canadian cases from the Ontario Superior Court of Justice: Leduc v. Roman, 2009 CanLII 6838, and Murphy v. Perger, [2007] O.J. No. 5511. In Leduc, the court overturned the trial court’s holding that the existence of the plaintiff’s Facebook account was not reason to believe it contained relevant evidence about his lifestyle. In Murphy, that court ordered a plaintiff in a motor vehicle suit to produce copies of her Facebook pages, agreeing with the defendants that the pages were likely to contain photographs relevant to the plaintiff’s damages claim and because the plaintiff had opened the door by serving photos of herself in various activities pre-accident.
 

Katzenstein Krissy Katzenstein

Another case Magistrate Judge Lynch cited was Bass v. Miss Porter’s School, 2009 WL 3724968 (D.Conn. 2009), which she said used a discovery procedure that could be appropriate in this jurisdiction and if any other disputes surface about the EEOC’s compliance with the order. Still, the Bass case and these facts led Magistrate Judge Lynch to determine that not all of the plaintiffs’ social networking site information should be produced. But she found that even if the sites are “private” or locked out to the general public, they’d still have to turn over the information.

But in regard to past work history, Magistrate Judge Lynch found that the information didn’t have to be produced and followed what many courts have done nationally. Her rationale follows the ruling from two years ago in Woods v. Fresenius Med. Care Grp. of N. America, 2008 U.S. Dist. LEXIS 3756 (S.D. Ind. Jan. 16, 2008), that the past work history of the two plaintiffs need not be produced as the defense had failed to demonstrate its relevance to the particular claims and defenses in this case.

Attorneys for the EEOC declined to comment about the issue generally or specifically because the case remains pending, and the Indianapolis attorneys at Bose McKinney & Evans – Dan Emerson, Emily Yates, and Andrew McNeil – did not return messages from Indiana Lawyer for comment.

But those who’ve observed this case and issue and have encountered social media discovery in litigation say the ruling has significant meaning as society further embraces these types of online resources. Some have described it as landmark.

At Baker & Daniels, Buttrick and his colleague Krissy Katzenstein wrote a legal advisory about the order once it came out in May, and they have been contacted by attorneys, writers, and bloggers about it since then.

“This wasn’t a garden-variety emotional distress, but more severe, and there’s no application at this point beyond the most severe of these types of employment cases,” Buttrick explained. “But her holding and rationale is equally applicable to less severe cases where someone may be less traumatized at a particular time, and it’s something that everyone should keep in mind. It can be helpful or hurtful depending on what side of the fence you’re on.”

Though it goes in the company’s favor, the ruling should also be viewed as a “warning shot” because it could easily be applied against a defendant in the future, Buttrick said. Defense attorneys should be advising their clients to review their conduct and policies on social networking, and those of their employees. They need policies that put management and employees on notice about what’s acceptable in the workplace, and possibly even in personal and off-duty settings if those might influence the workplace, he said.

From the plaintiffs’ bar perspective, Indianapolis employment and civil rights attorney Ryan Sink at Haskin & LaRue said these types of requests are becoming more common and he’s seeing the requests come up more during depositions and interrogatories. But unlike this Simply Storage case, he said his observations in recent years have been that there needs to be some reasonable standard and basis for requesting certain amounts of social networking information.

Typically, Sink says he asks during a deposition or interrogatory whether someone has an account and will then focus in on receiving messages or posts about that specific employment issue at hand, he said.

“You’re looking for e-mails or documents about the mental state of decision-makers, or the employee if you’re looking at it from the defense side,” he said. “We’re trying to go into that social media world more, but what I don’t do, as they did in this case, is request a full print off or full account. This doesn’t change my opinion that you shouldn’t automatically expect for it to be the full account, because that’s a fishing expedition and is not proper. You need a basis for going in there.”•

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  1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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