Kathryn Brown’s Student Note, The Risks of Taking Facebook at Face Value: Why the Psychology of Social Networking Should Influence the Evidentiary Relevance of Facebook Photographs, was cited by U.S. Magistrate Judge A. Kathleen Tomlinson in Giacchetto v. Patchogue-Medford Union Free Sch. Dist., No. 2:11-cv-06323 (ADS) (AKT), 2013 WL 2897054, 2013 U.S. Dist. LEXIS 83341 (E.D.N.Y. May 6, 2013).

This case saw the plaintiff, Theresa Giacchetto, sue for emotional damages stemming from alleged violations of the Americans with Disabilities Act by her employer, the defendant school district. The defendant moved for discovery on the plaintiff’s social media postings related to (1) “emotional and psychological well-being,” (2) physical damages, and (3) events alleged in the complaint–though at first the defendant had apparently sought discovery of everything in plaintiff’s social media accounts. Id. at *6. The court required additional pleading on the issue of (2) physical damages and granted discovery of (3) everything referring or relating to the events alleged in the complaint. Id. at *13-14.

As to the broader discovery sought for evidence of emotional state, Judge Tomlinson ruled that the “[p]laintiff’s routine status updates and/or communications on social networking websites are not, as a general matter, relevant to her claim for emotional distress damages, nor are such communications likely to lead to the discovery of admissible evidence regarding the same” id. at *11. The opinion’s relevance analysis carefully distinguished social media evidence that would undercut allegations of physical injury from social media evidence relating to psychological and emotional health. In the process, Judge Tomlinson cited Kathryn’s Note for the proposition that, “[b]ecause social networking websites enable users to craft a desired image to display to others, social scientists have posited that outside observers can misinterpret that impression.” Id. at *10-11.

Judge Tomlinson therefore sharply limited discovery of “routine” status updates and communications, ordering production of only those posts making “specific reference[]” to the emotional distress or any treatment for it, as well as anything relating to alternative potential sources of emotional distress. Id. at *11.

This case, with the aid of Kathryn’s framing of the issue, arrives at the right conclusion: social media evidence is a new arena, but is not broadly discoverable in any case involving proof of an emotional state. A balanced approach, limiting fishing for largely irrelevant information that is as likely to be legitimate as it is to be projected, is in order here.

–Brad Edmondson

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