The U.S. District Court for the Central District of California signaled in a Sept. 7 decision that it has reservations with what it deemed vague and burdensome social media discovery requests that have been permitted by other federal district courts in employment discrimination cases alleging emotional distress (Mailhoit v. Home Depot U.S.A. Inc., C.D. Cal., No. 2:11-cv-03892-DOC-SS, order granting in part and denying in part defendant's discovery motion 9/7/12).
Home Depot U.S.A. Inc. sought to compel plaintiff Danielle Mailhoit provide all social media communications that related to her mental state, third-party communications that provided context to those statements, and all social media photos of Mailhoit during a relevant time period.
Home Depot's requests, the court noted in an opinion by Magistrate Judge Suzanne H. Segal, were modeled on permitted discovery in EEOC v. Simply Storage Management LLC, 270 F.R.D. 430 (S.D. Ind. 2010), which the court repeatedly cited in its ruling. An Aug. 29 opinion from the U.S. District Court for the District of Oregon characterized Simply Storage as the “most frequently cited and well-reasoned case addressing the discoverability of social media communications involving emotional distress” (see related article).
However, the ruling in Simply Storage, Segal wrote, showed reservations about the vague discovery requests when it said they were not “drawn … with the precision litigants and their counsel typically seek.” The fact that same court “admonished counsel to make 'judgment calls' 'in good faith' … suggest that the court itself was concerned about the parties' ability to carry out the order,” Segal added.
Thus, she held that the broad social media requests were not permitted under Fed. R. Civ. P. 34. However, a request for “[a]ll social networking communications between Plaintiff and any current or former Home Depot employees, or which in any way refer [or] pertain to her employment at Home Depot or this lawsuit” was appropriate, Segal said.
Mailhoit began her career at Home Depot in 1991 as a cashier, according to her complaint. She rose up the ranks and eventually became a store manager in the home improvement chain's Pacific Central Region.
However, Mailhoit alleged that her time at the company was marred by repeated gender discrimination by senior management that promoted an “old boys club” atmosphere. She said that after a certain point, further promotions were denied to her because of her gender.
In 2008, Mailhoit was diagnosed with right peripheral vestibulopathy, which she said resulted in an inability to drive because of vertigo. She sought assistance with rides for work events, usually from her store's employees.
In May 2010, Home Depot terminated Mailhoit's employment, saying she acted inappropriately in requesting rides from store employees. Mailhoit responded that the claimed reason for her firing was a pretext for gender and disability discrimination.
Mailhoit brought emotional distress claims against Home Depot in her employment discrimination lawsuit, claiming she suffered from post-traumatic stress disorder, depression, isolation, and had cut herself off from communication with friends.
The company countered that publicly available information on her Facebook and LinkedIn accounts undermined her claims to be isolated and cut off from friends. Home Depot sought broad discovery of Mailhoit's social media communications, which the plaintiff responded were unduly burdensome and would be duplicative of discovery she provided about communication with 16 current or former Home Depot employees.
The court said that Rule 34 permits social media discovery. However, “several courts have found that even though certain [social networking site] content may be available for public view, the Federal Rules do not grant a requesting party 'a generalized right to rummage at will through information that [the responding party] has limited from public view.' ”
Instead, the requesting party must show that the sought-after information is reasonably calculated to lead to the discovery of admissible evidence,” the court added, quoting Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D. Mich. 2012).
The court concluded the requests for all social media posts that could cast light on Mailhoit's emotional state was impermissibly broad. Not only would it be difficult for the plaintiff to determine what was responsive to the vague request, the court held, but it would require production of irrelevant posts such as, “I hate it when my cable goes out.”
The request also sought any entries related to events that may produce a significant emotion, which the court explained could arguably include posts about watching a football game or movie on television. That was too vague and overbroad, it ruled.
A request for third-party communications that would provide context to Mailhoit's communications suffered from similar vagueness deficiencies, the court added.
The request for any photos Mailhoit posted or friends tagged her in was ruled impermissibly broad. Again quoting Tompkins, the court explained that the federal rules do not permit a litigant “to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in [the producing party's] Facebook account.”
However, the request for communications with current or former Home Deport employees was sufficiently tailored, the court explained. It noted that the plaintiff said she likely already provided social media communications for 16 current or former employees, which showed it was a feasible request.
Andrew H. Friedman, Gregory D. Helmer, Kenneth A. Helmer, and William O. Kampf, Helmer Friedman LLP, Venice, Calif., represented Mailhoit. Andrew J. Jaramillo and Christopher J. Archibald, of the Costa Mesa, Calif. office of Ogletree Deakins Nash Smoak & Stewart PC; Elizabeth A. Falcone, Leah C. Lively, and Micah D. Fargey, of Ogletree Deakins's Portland, Ore., office; and Judy The-Ping Sha, of Ogletree Deakins's Los Angeles office, represented Home Depot.
By Michael O. Loatman