• Discovery of Facebook Allowed in Sexual Harassment Case
  • August 27, 2010 | Author: John A. Koepke
  • Law Firm: Jackson Walker L.L.P. - Dallas Office
  • A recent discovery order in the case of EEOC v. Simply Storage Management in the U.S. District Court for the Southern District of Indiana discussed how much information from social network sites is discoverable to an employer defending a sexual harassment claim.

    Two females claimed that they were subjected to sexual harassment during their employment with Simply Storage. The Equal Employment Opportunity Commission filed a complaint on their behalf.

    Simply Storage’s request for production of documents included requests for “all photographs or videos posted by claimants or anyone on [their] behalf on Facebook or MySpace [from the beginning of their employment to the present],” and requested all “updates, messages, wall comments, causes joined ... activity streams ... and applications for the same time period.”

    Simply Storage asserted the requests were proper because the EEOC had placed the “emotional health” of the women at issue by claiming that the women had sought “medical treatment” for anxiety stemming from the alleged sexual harassment and become “depressed and suffered from post traumatic stress disorder.” The EEOC argued that “production should be limited to content that directly addresses or comments on matters alleged in the complaint.”

    Decision and Limitations

    The court found the fact that the claimants may have “locked” their information or profiles from public access did not serve as a legitimate basis for shielding the communications from discovery. The court focused on the severe emotional distress allegation, holding “it is reasonable to expect severe emotional or mental injury to manifest itself in some [social network] content, [including when the distress occurred and the degree of distress].”

    The court determined that Simply Storage was entitled to discover any “profiles, postings or messages ... that reveal, ... any emotion, feeling or mental state, as well as communications that reveal, ... events that could reasonably be expected to produce a significant emotion, feeling or mental state,” and any pictures that they had posted on their sites, as the “claimants’ appearance may reveal [their] emotional or mental status.”


    Typically in a harassment claim, a claimant will allege emotional distress damages. Employers should seek social network site postings in discovery for evidence of such.

    Social network site discovery might also be appropriate in the harassment context on the issues of whether the allegedly offensive behavior was “welcome” or whether the plaintiff was subjectively offended. The sexual nature of a plaintiff’s postings would seem to be relevant if he or she claims to have been offended by such comments in the workplace. This particular issue is neither raised nor discussed in the Simply Storage case, but the issue is sure to be raised as the boundaries of social network discovery are further explored by the courts.