Employment Law Daily Full access to Title VII plaintiff’s social media accounts denied as ‘wholesale invasion’ of privacy
Friday, December 1, 2017

Full access to Title VII plaintiff’s social media accounts denied as ‘wholesale invasion’ of privacy

By Marjorie Johnson, J.D.

An employee who brought sexual harassment and intentional infliction of emotional distress (IIED) claims asserting that two male coworkers watched her change clothes on a company security camera and showed the video to others, waived the psychotherapist-patient privilege by bringing an IIED claim, and thus was ordered to provide access to her medical records. Granting in part the defendants’ motion to compel, a federal magistrate judge in Connecticut also ordered her to produce copies of communications in her social accounts relating to potential witnesses. However, the court denied the defendants’ bid for full access to her social media accounts since doing so would constitute a “wholesale invasion of her privacy” (Marsteller v. Butterfield & Stamford, LLC, November 27, 2017, Merriam, S.).

“Severe” emotional distress. The employee’s lawsuit alleged sexual harassment and retaliation under Title VII and state law, intentional infliction of emotional distress, FLSA violations, and common law privacy claims. Among other things, she claimed two male defendants repeatedly sexually harassed her, watched her changing her clothes on a company security camera in a private office, and showed the video of her changing clothes to other workers. As a result, she experienced “severe emotional distress.”

Social media communications. The defendants sought either direct access to her social media accounts or copies of her social media communications. Specifically, at issue was their initial request for production of any statements by any witnesses to the incidents she described in her lawsuit, including emails and text messages regarding or relating to the incidents. They argued that any of her social media communications encompassing materials responsive to these requests were relevant to her allegations of emotional distress. In response, she argued that she never posted anything relevant to her employment or her allegations.

Not entitled to direct access of accounts. The court denied their expansive request for direct access to her social media accounts, noting that courts have held that an employee’s “routine status updates and/or communications on social networking websites are not, as a general matter, relevant to her claim for emotional distress damages, nor are such communications likely to lead to the discovery of admissible evidence regarding the same.” Here, requiring her to provide her social media passwords to defendants would constitute a “wholesale invasion of her privacy” that would be “far outside the bounds of proportionality.” Since this was a clear, unsupported “example of a fishing expedition,” the request was denied.

Certain social media communications discoverable. However, the fact that she may have used social media as a method of communication, rather than a handwritten letter or email, did not insulate her from having to produce relevant materials. Therefore, the court granted the defendants’ alternative request for copies of any social media materials that included statements by potential witnesses. But it refused their attempt to expand their requests for all media communications and photographs that might “reveal, refer or relate” to her mental or emotional state generally.

Waived medical records privilege. The defendants fared better with their bid for medical information. Specifically, they sought her authorization for release of medical records relating to the injuries she alleged. Though she claimed that her medical files were privileged, the psychotherapist-patient privilege is waived when a plaintiff puts his or her mental condition at issue. Thus, by bringing an IIED claim—which under Connecticut law required that she show she suffered distress that was “so severe that no reasonable person could be expected to endure it—she waived the psychotherapist-patient privilege.

The court squarely rejected her assertion that she only sought damages for “garden variety” emotional distress since “it is the complaint that defines the claims.” Regardless of whatever damages she sought, her IIED claim required a showing of severe emotional distress, and the defendants were entitled to discovery of her treatment records to provide a reasonable opportunity to defend against these claims. Thus, the court granted their motion to compel production of medical records, but left the method of response up to her. She could either provide an executed authorization form or copies of the requested medical records.

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