On May 11, 2010, Magistrate Judge Lynch of the Southern District of Indiana entered an order in EEOC v. Simply Storage Mgmt., LLC, No. 09-1223 (S.D. Ind. May 11, 2010) (relying heavily on Canadian law), in which she permitted broad discovery by the defense of plaintiff’s social network sites. The EEOC brought suit on behalf of two female employees of a self-storage firm, the property manager and the associate manager, contending that the two and other similarly situated female employees were subjected to unwelcome sexual groping, sexual assault, and sexual comments by a male property manager. The two females alleged that the sex harassment resulted in severe emotional distress. Judge Lynch ordered them to disclose to the defense extensive information from their MySpace and Facebook accounts, including all profiles, status updates, wall posts, groups joined, causes supported, photos, applications, and the like that “reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.”
Judge Lynch held that any privacy concerns were overridden by the fact that plaintiffs had already shared the information “with at least one person.” In support thereof, Judge Lynch cited two Canadian cases—Leduc v. Roman, 2009 CanLII 6838, at ¶31 (ON S.C.) (“Facebook is not used as a means by which account holders carry on monologues with themselves.”), availablehere, and Murphy v. Perger,  O.J. No. 5511 (S.C.J.) (Ontario Superior Court of Justice)—as well as Mackelprang v. Fidelity Nat’l Title Agency of Nevada, Inc., 2007 U.S. Dist. LEXIS 2379 (D. Nev. 2007), for the proposition that “merely locking a profile from public access does not prevent discovery” under the auspices of privacy.
In Murphy, the Ontario Superior Court of Justice ordered a plaintiff in a motor vehicle suit to produce copies of her Facebook pages. The defendant successfully argued that the pages were likely to contain photographs relevant to the plaintiff’s damages claim, and was buttressed by the fact that the plaintiff had served photographs showing herself participating in various forms of activities pre-accident. The court concluded:
“Having considered these competing interests, I have concluded than any invasion of privacy is minimal and outweighed by the defendant’s need to have the photographs in order to assess the case. The plaintiff could not have a serious expectation of privacy given that 366 people have been granted access to the private site.” [Thanks to Dan Michaulk for the preceding synopsis and quotation.]
In Leduc, the Ontario Superior Court of Justice overturned the trial court’s holding that the existence of the plaintiff’s Facebook was not reason to believe it contained relevant evidence about his lifestyle. In so doing, the court stated:
“With respect, I do not regard the defendant’s request as a fishing expedition, Mr. Leduc exercised control over a social networking and information site to which he allowed designated ‘friends’ access. It is reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc has been able to lead his life since the accident . . . a court can infer, from the nature of the Facebook service, the likely existence of relevant documents on a limited-access Facebook profile.” Leduc, 2009 CanLII 6838, at ¶¶ 32 & 36.
The Simply Storage court also ruled, following the rationale articulated several years ago in Woods v. Fresenius Med. Care Grp. of N. America, 2008 U.S. Dist. LEXIS 3756 (S.D. Ind. Jan. 16, 2008), that the past work history of the two plaintiffs need not be produced as the defense had failed to demonstrate its relevance to the particular claims and defenses in this case.
A number of courts have held as a “general rule” that plaintiff’s prior job performance is irrelevant in employment cases. See Laffey v. Janssen, 2006 U.S. Dist. LEXIS 14833 (M.D. Fla. 2005) (excluding evidence of prior performance for the same employer). See also Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1511 (D.C. Cir. 1995) (holding that because plaintiff’s difficulties with interpersonal relationships at her prior job was irrelevant, the district court improperly admitted such evidence); Zenian v. District of Columbia, 283 F. Supp. 2d 36 (D.D.C. 2003) (holding that evidence of prior employment cannot be introduced in the attempt to prove that plaintiff acted consistently with his prior conduct); Fyock v. American Public Gas Ass’n, Civ. No. 2008 CA 006454 B (D.C. Sup. Ct. Apr. 24, 2009) (finding that defendant’s proffered justification for the discovery of plaintiff’s employment records—including that it is “standard practice” and that such discovery would "shed light on Plaintiff’s termination of previous employment” and “lead to discovery of admissible evidence"—failed to demonstrate how plaintiff’s employment records were relevant or discoverable).
Courts have consistently prevented discovery of employees’ character. See Neuren, 43 F.3d at 1511 (holding that the district court improperly admitted evidence of plaintiff’s difficulties with interpersonal relationships at her prior job); Zubulake v. UBS Warburg, LLC, 382 F. Supp. 2d 536 (S.D.N.Y. 2005) (holding that using plaintiff’s prior job performance to show plaintiff was insubordinate and uncooperative at the job he was terminated from was inadmissible propensity evidence); Fyock, Civ. No. 2008 CA 006454, at p. 9-10 (“As to Plaintiff’s employment with [his former employers], this Court finds that even if the Plaintiff’s employment records did contain evidence suggesting that Plaintiff had a problem with his emotional behavior during his employment with [his former employers], such information is irrelevant to Plaintiff’s claims of age discrimination, breach of contract and promissory estoppel.”). Such evidence would not be admissible at trial as its only purpose would be an attempt to prove that the employee acted consistently with his character as evidenced by his prior employment. See Neuren, 43 F.3d at 1511 (holding that the district court improperly admitted evidence of plaintiff’s difficulties with interpersonal relationships at her prior job); Zenian, 283 F. Supp. 2d at 40 (D.D.C. 2003) (“If the District is offering the [prior employment] evidence to show that plaintiff has always been a bad employee, it is doing exactly what it cannot do: introduce evidence of a person’s character to prove that his behavior on one or more occasions was consistent with that character. Fed.R.Evid. 404(a). … That, of course, is exactly what a litigant cannot do.”). Moreover, character evidence is generally considered not to be an element of any claim or defense in employment cases. See Zubulake, 382 F. Supp. 2d at 539 n.1 (“Plaintiff’s character is not an essential element of any claim or defense in an employment discrimination case. The prohibitions of Rule 404(b) therefore apply.”). See also EEOC v. HBE Corp., 135 F.3d 543, 553 (8th Cir. 1998) (plaintiff's character was not an essential element of his retaliatory discharge claim).
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