Privacy v. Discovery: The Case for Discovery

    July 17, 2012

    In part three of Privacy v. Discovery: The Battle for Social Media Information, I analyze the seminal case holding that social media information behind privacy settings is discoverable. As explained below, the Southern District of Indiana makes a persuasive case that Internet users lack a reasonable expectation of privacy in social media information that shielded from the general public through privacy settings.

    The seminal case holding that “private” social media content is discoverable is Equal Employment Opportunity Commission (EEOC) v. Simply Storage Management, 270 F.R.D. 430, 434, fn. 2 (S.D. Ind. 2010).  The EEOC, on behalf of two female Simply Storage employees, filed a sexual harassment action against the company, which then requested the Facebook and MySpace profiles and communications of the alleged harassment victims. The EEOC objected to producing all social media content on the grounds that it would improperly impinge on the victims’ privacy rights.

    Acknowledging that a party “may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense,” the court immediately ignored the impact of privacy settings. It said social media content is not shielded from discovery simply because a user “locks” it or makes it “private.”

    Instead, the court said it would consider privacy concerns to the extent discovery requests are burdensome, oppressive or sought for an improper purpose. It rejected, however, the idea that a person’s subjective expectation that his or her communications remain “private” was a legitimate basis for shielding those communications from discovery. These concerns can be adequately addressed by a protective order, it reasoned. To the court, merely “locking” a profile through privacy features does not prevent it from being discoverable.

    While acknowledging private social media content may include sensitive personal information that could be embarrassing, the court said disclosure of such information is inevitable when suing to recover for personal injuries. It also held that “this concern is outweighed by the fact that the production here would be of information that the claimants have already shared with at least one other person through private messages or a larger number of people through postings.”

    Accordingly, the court overruled the privacy objections and ordered the EEOC to produce the claimants’ “private” social media communications and content.

    This subject is discussed in greater detail in my article titled Social Media Crossroads: An Analysis of the Law at the Intersection of Discovery and Privacy in the Realm of Social Media, first published on Westlaw’s Computer & Internet Journal, Volume 29, Issue 23. In the next post, I will delve further into the line of cases holding that social media information behind privacy features are discoverable. 

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