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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. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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