IT-Lex has regularly reported on the issue of social media discovery, and a recent case has led to a Court’s examination of these evidentiary boundaries yet again. When Polly Potts asserted claims against her former employer Dollar Tree Stores, for harassment and discrimination based on race, hostile work environment and retaliation, Dollar Tree Stores responded by making quite a few discovery requests, including asking for access to her “Facebook and/or other social media data”. Not surprisingly, Potts objected, and a district court in Tennessee recently made its decision.
Up to this point (and as Keller and Reid demonstrated), different Courts have ruled differently on the admission of social media in discovery. However, it seems that Courts are starting to develop a more concrete standard in determining whether to permit such discovery. In particular, Courts are reluctant to permit social media content in discovery unless “the defendant makes a threshold showing that publicly available information on those sites undermines the plaintiff’s claims.” This approach preserves privacy to an extent, even though social media content “is not protected from discovery merely because a party deems the content “private.””
In Potts, the court followed this principle. By establishing this threshold requirement, it attempted to prevent the “proverbial fishing expedition,” “in the hope that there might be something of relevance in Plaintiff’s Facebook account.” Unfortunately for the Dollar Tree, they were deemed to have not met that threshold:
The Defendant lacks any evidentiary showing that Plaintiff’s public Facebook profile contains information that will reasonably lead to the discovery of admissible evidence. Plaintiff produced her day planner, documentation of “write-ups” and “store visits,” emails between Plaintiff… and other employees at Dollar Tree, as well as all relevant information stored on her computer. Plaintiff asserts that she no longer has possesses any photographs of the Dollar Tree store. Thus, the Court concludes that Defendant has not made the requisite showing for full access to Plaintiff’s private Facebook or other social media pages.
It always bears repeating that a Facebook, or any other social media profile, is by no means safe from discovery, so watch what you’re saying on yours.