A Speed Bump for the Scope of Social Media Discovery?

Is there an exception for social media discovery in sex-related civil cases?

In a previous post, I discussed court decisions that fell on both sides of the discovery battle: some courts have held that all social media content is fair game in discovery; while others have held that the requesting party must show some sort of basis for requesting the information before the court will compel unfettered access.  It really comes down to the judge (and how much publicly available evidence you can get to help your cause).

The case of Ogden v. All-State Career School (2014 U.S. Dist. LEXIS 56212) out of the Western District of Pennsylvania suggests that in a Title VII sexual harassment case, the court can take eventual admissibility concerns into account when deciding whether to grant an all-access pass to social media.

In this case, the Defense sought access to the Plaintiff's social media accounts partly on the basis that his interactions with other people may provide evidence that the Plaintiff was not subjectively offended by the words and statements used by his coworkers.  In other words, the Plaintiff may not be as chaste in word and deed as the complaint would have the court believe.  For those unfamiliar with Title VII sexual harassment claims, there is an objective (reasonable offensive) and subjective (actually offended) aspect to the claims.  Ergo, Howard Stern is effectively barred from filing a sexual harassment claim ever.  But I digress.

In his decision, the District Court Judge analyzed and adopted a line of cases that contemplates admissibility of the evidence under Federal Rule of Evidence 412.  This rule generally prohibits the introduction of past sexual behavior in order to prove a predisposition for such behavior.  The line of cases essentially holds that while evidence of sexually related communications very well may be relevant to the emotional distress of the plaintiff, the probative value is nonetheless outweighed by the prejudicial effect of such evidence.

The probative vs prejudicial distinction is based, in part, on the idea that what one feels is acceptable with one's friends is different that what is appropriate with one's co-workers and supervisors.   That may work on a superficial level, but I would be curious to find how many social media users are not friends or followers of at least some of their coworkers; thus blurring the nice little line drawn by the courts.

In any event, the Ogden order provides support for the idea that in sexual harassment claims, the discovery standard is not as liberal as Rule 26(b) leads one to think.  Instead of "reasonably calculated to lead to the discovery of admissible evidence", it's more "reasonably calculated to lead to admissible evidence."  It's only 3 words, but it essentially takes some admissibility questions out of the trial phase and puts them into discovery disputes.