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Co-authored by: <a href="http://www.bakerlaw.com/albertorodriguez/">Alberto Rodriguez</a>

We previously posted about the <a href="http://www.discoveryadvocate.com/2012/03/26/is-social-media-discoverable-stick-to-the-basics-part-i-relevance/">threshold issue of relevance</a> in social media discovery in the context of <a href="https://discoveryadvocate.bakerhostetlerblogs.com/wp-content/uploads/sites/12/2012/03/Simply_Storage.pdf">EEOC v. Simply Storage</a>, in which the Southern District of Indiana limited broad requests for social media to those relevant to the claimant’s mental and emotional health – specifically, those communications, photographs, and videos that would “reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.”

Recently, in <a href="http://scholar.google.com/scholar_case?case=17855446275012887254&amp;hl=en&amp;as_sdt=2&amp;as_vis=1&amp;oi=scholarr">Mailhoit v. Home Depot USA</a>, Magistrate Judge Suzanne Segal found almost identical requests to be overbroad. 

The Court acknowledged that the discovery requests at issue were closely modeled after the requests permitted in Simply Storage.  Specifically, the defendants sought discovery of (1) “profiles, postings or messages” from social networking websites that “reveal, refer or relate to any emotion, feeling, or mental state of Plaintiff,” (2) any “communications to Plaintiff that place her own communications in context,” and (3) “pictures of Plaintiff taken during the relevant time period” that had been “posted on Plaintiff’s profile or tagged or otherwise linked to her profile.” 

But the Court found that the requests did not satisfy <a href="http://www.law.cornell.edu/rules/frcp/rule_34">the “reasonable particularity” requirement of Rule 34(b)(1)(A)</a> of the Federal Rules of Civil Procedure and, as such, were “<a href="http://scholar.google.com/scholar_case?case=17855446275012887254&amp;hl=en&amp;as_sdt=2&amp;as_vis=1&amp;oi=scholarr">not reasonably calculated to lead to discovery of admissible evidence</a>.”  There was no dispute that Plaintiff had put her mental and emotional state at issue, or that it was possible some social media communications might “support or undermine her claims of emotional distress.”  Nonetheless, the Court found that “the extremely broad description of the material sought” was vague and did not “put a ‘reasonable person of ordinary intelligence’ on notice of which specific documents and information would be responsive.”  For example, the statement, “I hate it when my cable goes out,” would refer to an “emotion, feeling, or mental state of Plaintiff,” but would not be relevant to matters in dispute.

By contrast, the Court <a href="http://scholar.google.com/scholar_case?case=17855446275012887254&amp;hl=en&amp;as_sdt=2&amp;as_vis=1&amp;oi=scholarr">approved of a fourth request</a> for “social networking communications between Plaintiff and any current or former Home Depot employees,” and any communications referring or pertaining “to her employment at Home Depot.”  The Court found that the request put Plaintiff “on notice of the materials to be produced” and was “reasonably calculated to lead to the discovery of permissible evidence.”

Bottom line – while courts are likely to approve tailored request for social media, they will not grant a <a href="http://scholar.google.com/scholar_case?case=17855446275012887254&amp;hl=en&amp;as_sdt=2&amp;as_vis=1&amp;oi=scholarr">“generalized right to rummage at will”</a> through social networking sites.

Keep Your Social Media Discovery Targeted!