In our last blog, we began a discussion regarding the case Giaccehtto v. Patchogue-Medford Union Free School District, No. CV 11-6323(ADS)(AKT)(2013 WL 2897054 (E.D.N.Y.)). In the case, the court rejected the trend requiring a “threshold evidentiary showing” of relevancy of the public portion of a social media account to gain electronic data evidence regarding the private portion of the account. The court instead ruled upon the requests by a “traditional relevancy analysis.” So, how did things turn out under this review?
First, the court noted two approaches to the request for social media postings about plaintiff’s emotional and psychological well-being. One approach would be to hold that all social media data is relevant when a plaintiff claims emotional distress damages. However, “Other courts have questioned the probative value of the material.” The court agrees with the latter approach, and notes that expressions of joy or happiness on social media shed little light on whether the person is actually suffering emotional distress. While it is obvious that postings that belie claims of physical ailments are relevant, “happy posts” do not necessarily contradict a claim of emotional distress. The court recognizes that a social media user is crafting an image to display to others, which may not necessarily be a true reflection of the user’s mindset.
The judge denied unfettered access to all data, and ordered the plaintiff to produce:
- Specific references to the emotional distress she claimed to have suffered, and
- Postings that point to alternate potential stressors
In addressing the request for data in relation to physical damages, the court tabled this decision and ordered plaintiff to confirm that she is seeking relief for physical damages and to specify the claimed harm. The court also ordered the plaintiff to produce any data regarding any accounts of the events contained within the Amended Complaint.
Finally, the court ordered plaintiff’s counsel, not the plaintiff herself, to review the social media accounts and produce the ESI in accordance with the order, keeping in mind the broad scope of discovery contained in Rule 26.