Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Introduction
A companys in-house counsel learns of a potential sexual harassment claim by a female employee against her supervisor and believes
the supervisors alleged actions raise liability concerns for the company.1 With a simple internet search, counsel finds the complaining employees Facebook profile in seconds.2 The employee is a beautiful
young girl, and her profile picture shows her in a short, form-fitting
1 See 29 C.F.R. 1604.11 (2012)(describing employer liability for harassing conduct of its
employees).
2 See Phillip Fung, The Facebook Blog: Public Search Listings on Facebook, Facebook (Sept. 5,
2007, 12:57 AM), https://blog.facebook.com/blog.php?post=2963412130 (stating that
limited versions of Facebook profilesincluding a thumbnail of the users Facebook profile
picturewill be available via Google, Yahoo and other search engines to people who are not
logged into Facebook); infra note 103 and accompanying text (stating that because many
users do not understand their privacy options, attorneys often practice informal discovery
by browsing social media themselves prior to the beginning of the case).
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The EEOC Guidelines describe two types of actionable sexual harassment: quid pro quo and hostile work environment claims.30 Each
type offers an alternative way for a plaintiff to prevail on her harassment claim.31 A hostile work environment claim allows a plaintiff to
prevail without proving that a tangible employment actionsuch as
firing or demotionoccurred as a result of her refusal of sexual advances, which is required in a quid pro quo claim.32 Rather, the success
of a hostile work environment claim turns on the plaintiff proving that
unwelcome sexual conduct is so severe or pervasive that it unreasona30 29 C.F.R. 1604.11. This Note will focus on hostile work environment claims (hereinafter sexual harassment cases), rather than quid pro quo claims. A plaintiff may bring a
quid pro quo sexual harassment claim when a supervisor with authority over her makes
submission to or rejection of unwelcome sexual advances, requests for sexual favors, or other verbal or physical sexual conduct a term or condition of the plaintiffs employment. Id.;
Elsie Mata, Title VII Quid Pro Quo and Hostile Environment Sexual Harassment Claims: Changing
the Legal Framework Courts Use to Determine Whether Challenged Conduct Is Unwelcome, 34 U.
Mich. J.L. Reform 791, 802 (2001). An explicit condition of employment might be I will
fire you if you dont have sex with me. Mata, supra note 30, at 802. An implicit condition of
employment might be a supervisor mentioning sexual favors while discussing promotion
with a lower level employee. Id.; see Nichols v. Frank, 42 F.3d 503, 51213(9th Cir. 1994).
Unless an employer can show it took immediate steps to correct the behavior, it is always
liable for the conduct of a harassing supervisor in quid pro quo claims, even if unaware of
the conduct. 29 C.F.R. 1604.11(d); Meritor, 477 U.S. at 7071 (noting that courts have consistently held employers liable for actions of supervisors whether or not the employer knew,
should have known, or approved of the supervisor's actions.); Faragher v. City of Boca Raton, 524 U.S. 775, 790 (1998)(noting that employer liability is logical when harassment has
tangible results, such as hiring, firing, promotion, or changes in compensation or work assignment).
31 See 29 C.F.R. 1604.11; Mata, supra note 30, at 809. Both men and women can be victims of sexual harassment and both men and women can sexually harass members of either
or both genders. Id. at 793 n.10. For convenience and because sexual harassment is almost
exclusively practiced by men against women, I will use the pronoun he when referring to
the alleged harasser and she when referring to the plaintiff. Id.; see Sexual Harassment in the
Workplace,
National
Womens
Law
Center
(Aug.
1,
2000),
http://www.nwlc.org/resource/sexual-harassment-workplace (citing a survey showing that
almost half of all working women have experienced some form of harassment on the job);
Enforcement & Litigations Statistics, U.S. Equal Employment Opportunity Commission,
http://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment.cfm (last visited Mar.
23 2013) (showing that only 16.3% of all sexual harassment charges filed with the EEOC or
Fair Employment Practices agencies nationwide in FY2011 were filed by males). Throughout
this Note, I will refer to persons subjected to sexual harassment as plaintiffs. Although not
every victim of sexual harassment becomes a plaintiff in a sexual harassment claim, the use
of the term is meant to prevent the negative connotation that comes with the term victim.
See Beiner, supra note 4, at 125 n.4.
32 Meritor, 477 U.S. at 65. Actions that qualify as tangible employment actions for the
purposes of a quid pro quo claim include hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing a significant change in
benefits. Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 761 (1998).
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person would objectively find it abusive and such that the plaintiff herself subjectively found it so abusive as to create a hostile work environment.44 The Court suggested some factors to consider when evaluating
the conduct objectively.45 The non-exhaustive list included: the frequency of the conduct; the severity of the conduct; whether the conduct was physically threatening or humiliating; and, whether it unreasonably interfered with the plaintiffs ability to work.46
Though the Harris factors provide a helpful framework, the ultimate determination of a hostile work environment remains in the jurys hands.47 In his concurrence in Harris, Justice Antonin Scalia expressed concern that this lack of a bright line standard would lead to
inconsistent results based on the individual beliefs of jury members as
to what conduct was sufficiently severe or pervasive.48 Therefore, he
attempted to clarify what factors should be considered in 1998 in the
U.S. Supreme Court decision in Oncale v. Sundowner Offshore Services,
Inc.49 Justice Scalia instructed the lower courts to carefully examine the
social context in which the harassing conduct occurred and use common sense to determine if the conduct was so severe or pervasive as to
create a hostile work environment for the plaintiff in those circumstances.50
Combatting a developing belief that hostile work environment
claims would over-regulate behavior and make Title VII into a workplace civility code, the Oncale court went on to explain that the atmosphere and attitudes in a particular workplace influence whether certain
conduct constitutes harassment.51 Therefore, the Court explicitly statCourt refined the standard for establishing a hostile work environment by establishing
that the offensive conduct must be both objectively and subjectively hostile or abusive).
44 Harris, 510 U.S. at 2122.
45 Id. at 23. The Court also noted that if the conduct was a mere offensive utterance
and not physically threatening or humiliating it would likely not rise to the level of actionable sexual harassment. Id.
46 Id.
47 See id. at 24 (Scalia, J. concurring); Keller & Tracy, supra note 43, at 253 (noting that
Justice Scalias concern that the Harris factors failed to provide a clear standard was prescient.).
48 See id.
49 523 U.S. 75, 8182.
50 Id.
51 Id. at 8082. The Court in Oncale determined that same-sex harassment could constitute sexual harassment under Title VII. Id. at 79. The defendants in Oncale argued that extending Title VII to same-sex harassment would over regulate the workplace, making Title
VII into a civility code or code of conduct that unduly limited how coworkers could interact. Id. at 80. The Court rejected this notion, explaining that it had never used Title VII to
limit ordinary socializing in the workplace. Id. at 81.
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ed, Title VII did not prohibit innocuous differences in the ways men
and women routinely interact such as teasing and isolated comments.52
Taken together, the U.S. Supreme Court decisions in Meritor, Harris, and Oncale established the cause of action for hostile work environment claims: (1) the conduct must be so severe or pervasive as to
create an abusive work environment, and (2) courts must consider the
totality of the circumstances to determine if the conduct was unwelcome.53 Although some lower courts still fumble with the Harris factors
or struggle to define the totality of circumstances, the Courts decisions
in these cases still serve as the foundation of sexual harassment law.54
B. Tweeting & Timelines: What is Social Media & Why Does it Matter?
Social media, also called social networking, describes any type of
social interaction using technology with some combination of words,
photographs, video, and/or audio.55 Social media sites constitute one
of the most commonly used forms of electronic communication
worldwide, exceeding even email usage in 2009.56 A 2012 social media
survey completed by the Nielsen Company found that people spend
more time on social networking sites than any other category of sites,
dedicating twenty percent of their time on their personal computer
and thirty percent of their mobile time to social media.57
52 Id. at 81; see Faragher, 524 U.S. at 788.
53 Oncale, 523 U.S. at 8182; Harris, 510 U.S. at 2123; Meritor, 477 U.S. at 6668; see Keller & Tracy, supra note 43, at 255 (stating that the U.S. Supreme Court decisions between
1986 and 1998 created a cause of action for hostile work environment sexual harassment).
54 See Keller & Tracy, supra note 43, at 25658 (noting that confusion exists among lower
courts in applying the totality of the circumstances test due to a lack of specifically identified
factors); id. at 273 (explaining that the U.S. Supreme Court decisions in Meritor, Harris, and
Oncale provide sufficient guidance to eliminate confusion in the lower courts).
55 Aviva Orenstein, Friends, Gangbangers, Custody Disputants, Lend Me Your Passwords, 31
Miss. C. L. Rev. 185, 187 n.1 (2012) (citing John G. Browning, The Lawyer's Guide to
Social Networking: Understanding Social Media's Impact on the Law, 17 (2010)).
56 Breanne M. Democko, Comment, Social Media and the Rules on Authentication, 43 U.
Tol. L. Rev. 367, 367 (2012); see The Nielson Co., Global Faces and Networked Places:
A Nielson Report on Social Networking's New Global Footprint, 1 (2009), available
at
http://blog.nielsen.com/nielsenwire/wpcontent/uploads/2009/03/nielsen_globalfaces_mar09.pdf.
57 See The Nielsen Co., State of the Media: The Social Media Report, 4
(2012)[hereinafter The Social Media Report](stating the amount of time consumers spend on
social media sites on their phones and personal computers); Newsroom Key Facts, Facebook,
http://newsroom.fb.com/Key-Facts (last visited Mar. 23, 2013) (stating that Facebook has
one billion monthly active users as of December 2012 and 618 millions daily users in December 2012).
2013]
The increased and multi-faceted use of social media has significantly altered the way people share information and interact with one
another in both personal and professional settings.58 Fifty-one percent
of adults age twenty-five to thirty-four use social media while at work.59
Further, 2012 brought a marked increase in social media use by Fortune 500 companies as part of their business model, with seventy-three
percent using corporate Twitter accounts and sixty-six percent using
corporate Facebook accounts.60
Further, new social media sites continue to emerge, many of which
connect one social media site with another.61 For instance, Pinterest,
the most popular new social media site in 2012, allows users to pin
photographs, musicians, decorating concepts, and a variety of other
things that interest them to a virtual bulletin board and share those
pins with fellow Pinterest, Twitter and Facebook users.62 Pinterest also
reflects increased interaction between social media sites by allowing
new users to create an account via their existing Twitter or Facebook
accounts.63
Facebook, Twitter, and Myspace are three of the most-visited social
media sites.64 All three sites allow users to post photographs and status
updates from a computer or mobile device, share interests, invite others to attend events and join social groups, and send private messages
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65 See Democko, supra note 56, at 37578(describing Myspace, Facebook and Twitter);
Facebook, http://facebook.com/facebook (last visited Mar. 28, 2013); Press Room,
Myspace, http://www.Myspace.com/pressroom/ (last visited Jan. 2, 2013); About Twitter,
Twitter, http://www.twitter.com/About (last visited Jan. 2, 2013). A status update is generally a short, simple statement posted publically by the user that appears on her profile and
in
Facebook's
News
Feed.
See
Techopedia:
Facebook
Status,
Techopedia,
http://www.techopedia.com/definition/15442/facebook-status (last visited Jan. 9, 2013). A
message is privately sent to another user, more similar to traditional email. See Help Center:
Messaging, Facebook, http://www.facebook.com/help/326534794098501/ (last visited Mar.
20, 2013).
66 Democko, supra note 56, at 37578 (describing the privacy policies for Facebook,
Myspace and Twitter).
67
See
What
Does
Public
Mean?,
Facebook,
http://www.facebook.com/help/203805466323736/ (last visited Mar. 23 2013) (explaining
that public includes people who are not your friends on Facebook, people who are not in
your school or work networks and anyone on the internet); Privacy Settings on Myspace,
Myspace, http://www.Myspace.com/pages/privacysettings?pm_cmp=ed_footer (last visited Mar. 23, 2013) (explaining that on Myspace, public means the information is available
to everyone and will be displayed in search results both on Myspace and on external search
engines.); Account Settings, Twitter, https://support.twitter.com/articles/14016-aboutpublic-and-protected-tweets (last visited Apr. 9, 2013) (stating that public tweets are visible to anyone, whether or not they have a Twitter account.).
68 See Privacy Settings on Myspace, supra note 67. On Myspace, users basic profile information is public. Id. Basic profile information includes: a profile picture, numerical friend
ID, a vanity URL created by the user, the users location, gender and age, the users display
name. Id. The user may choose to display her real name. Id. On Facebook, a users profile
picture is public by default. Basic Privacy Settings & Tools, Facebook,
http://www.facebook.com/help/193629617349922/ (last visited Mar. 23, 2013).
69 See Newsroom Key Facts, Facebook, supra note 57 (stating Facebooks mission to make
the world more open and connected and to allow users to stay connected with friends and
family, to discover whats going on in the world, and to share and express what matters to
them.); Press Room, Myspace, http://www.Myspace.com/pressroom/ (last visited Jan. 2,
2013) (stating that Myspace allows people to connect, discover, and share.).
70 See Introducing Timeline, Facebook, https://www.facebook.com/about/timeline (last
visited Apr. 2, 2013)(providing an example of a user profile); Join the New Myspace, Myspace,
(last visited Mar. 1 2013) (inviting new users to share information about themselves to join
the site).
2013]
11
including her age, occupation, relationship status, and interests.71 Facebook users invite other users to become their friends to provide
access to their profile information.72 Friends can interact in various
ways on the sites.73 Every Facebook user has a timelineformerly
called a wallwhere friends can post messages or photographs that
either the public or only the users friends can see, depending on the
privacy settings in place.74 Facebooks News Feed, which automatically
updates each time the user logs into Facebook, provides users with
constant status updates from their friends.75 In addition, Facebook
continues to develop applications that allow users to connect through
playing games, sharing music, recommending restaurants and more.76
Myspace has focused on allowing users to share music, including the
music of independent and unsigned artists.77
Of the two sites, Facebook is the most popular site with over one
billion monthly active users as of December 2012, 618 million of whom
are daily users.78 In fact, a 2011 study showed that Americans spend
more time on Facebook than any other website.79 Myspace currently
71
See
Update
Your
Basic
Info,
Facebook,
https://www.facebook.com/help/334656726616576/ (last visited Mar. 23, 2013)(providing
information about what constitutes basic information on a Facebook Profile); Setting Up &
Deleting a Profile, Myspace, http://www.Myspace.com/help/safety/parents/profile (last
visited Mar. 23, 2013) (describing what information can be included in a Myspace profile).
72 See Friends, Facebook, https://www.facebook.com/help/friends (last visited Mar. 23,
2013).
73 Help Center, Facebook, https://www.facebook.com/help/ (last visited Mar. 23, 2013)
(listing different activities in which a user can participate on Facebook).
74
Compare
Facebook
Wall,
Techopedia,
http://www.techopedia.com/definition/5170/facebook-wall (last visited Apr. 9, 2013) (defining a Facebook wall a place on a users profile where the user can post status updates
and receive messages from friends.) with Facebook Timeline, Techopedia,
http://www.techopedia.com/definition/28406/facebook-timeline (last visited Apr. 9, 2013)
(explaining that the Timeline was introduced in 2011 and combines users Facebook walls
with
their
profiles);
see
Share,
Star
&
Hide
Stories,
Facebook,
https://www.facebook.com/help/wall (last visited Apr. 9, 2013) (allowing users to choose
what type of content they want to post on a timeline, including photographs).
75
See
Facebook
Status,
Techopedia
http://www.techopedia.com/definition/15442/facebook-status (last accessed Jan. 9, 2013)
(defining a status update as a short, simple statement posted publically by the user which
appears on their own profile and on Facebook, in a news feed that updates the users
friends about her change in status).
76 Newsroom, Facebook, http://newsroom.fb.com/Platform (last visited Mar. 23, 2013).
77 About Us, Myspace, http://www.Myspace.com/Help/AboutUs?pm_cmp=ed_footer
(last visited Mar. 23, 2012) (stating that Myspace is a social entertainment destination for
music fans and allows independent and unsigned artists to reach new audiences).
78 Newsroom Key Facts, Facebook, supra note 57.
79 Democko, supra note 56, at 367.
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has significantly fewer users than Facebook, but it still had twenty-five
million unique visitors in January 2012.80
Despite a decrease in usage of Myspace since its creation, Myspace
remains relevant for two main reasons.81 First, a seminal case on social
media discovery, the United States District Court for the Southern District of Indianas 2010 decision in E.E.O.C. v. Simply Storage Management,
involved requests for information from Myspace accounts.82 Second, in
2011, popular music artist Justin Timberlake bought Myspace and redesigned the site, making it more modern and focusing more on music
sharing.83 This re-release of Myspace may increase its popularity, and
therefore Myspace remains relevant.84
Twitter, the newest of the three popular sites, provides a different
format for user interaction and aims to achieve a slightly different purpose than Facebook and Myspace.85 Twitter describes itself as the fastest, simplest way to stay close to everything you care about.86 Twitter
allows users to send tweetsthe sites standard 140 character messageseither publically or privately to selected recipients.87 Tweets can
include links to news articles, photographs, or simple friendly messages.88 Twitter users are diverse in age, occupation and social status, and
include celebrities, government officials, and corporations using Twit80 John Cook, Say, what? Myspace moves up in ranking of top 50 U.S. Web sites, GeekWire
(Mar. 21, 2012, 2:02 PM), http://www.geekwire.com/2012/Myspace-move-top-50-webproperties/ (providing the number of unique Myspace visitors in in 2012).
81 See infra notes 8284 (discussing the relevancy of Myspace to an understanding of the
role of social media in litigation).
82 See E.E.O.C. v. Simply Storage Mgmt., 270 F.R.D. 430, 432 (S.D. Ind. 2010); Orenstein,
supra note 55, at 190 (explaining that Myspace is still relevant to litigation because case law
lags behind technology).
83 Press Room, Myspace https://new.Myspace.com/pressroom/aboutMyspace (last visited Feb. 4, 2013) (describing Timberlakes purchase of the site with co-owners Chris and Tim
Vanderhook); see Harrison Weber, Myspace teases a completely rethought service, and believe it or
not, it looks beautiful, The Next Web (Sept. 24, 2012, 9:06 PM),
http://thenextweb.com/insider/2012/09/24/Myspace-teases-completely-rethought-servicebelieve-not-looks-beautiful/. Indicating the crucial role of social media in society, in September 2012, Timberlake announced the redesign via Twitter. Press Room, Myspace
https://new.Myspace.com/pressroom/aboutMyspace (last visited Feb. 4, 2013).
84 See Weber, supra note 83.
85 The Social Media Report, supra note 57, at 7 (ranking popular social media sites); see
Democko, supra note 56, at 378 (explaining Twitter).
86 About Twitter, supra note 65.
87 Account Settings, Twitter, supra note 67 (stating that public tweets are visible to anyone, whether or not they have a Twitter account.); Democko, supra note 56, at 378 (explaining what a tweet is). Although public tweets only appear automatically in the Twitter
feed of users who follow another user, anyone can view public tweets if they search for
them. See Account Settings, Twitter, supra note 67.
88 About Twitter, supra note 65.
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15
discovery of social media information from both the plaintiff and the
social media site itself.105
C. What Happens Online Doesnt Stay Online: the Discovery of Social Media
Evidence
Although the law governing social media discovery is still developing, recent case law shows that social media information is generally
discoverable.106 Due to its clear reasoning, interpretation of precedent,
and broad applicability to the issue, courts have widely followed Simply
Storage, making it one of the landmark cases for determining the discoverability of social media content.107
In Simply Storage, a sexual harassment case, the court ruled that
information from plaintiffs social media sites was discoverable.108 The
parties in Simply Storage disagreed over four discovery requests for social
media information.109 The defendants sought discovery of complete
copies of the plaintiffs Facebook and Myspace profiles, including all
photographs, videos, status updates, messages, and any other changes
to the profiles during the relevant time period.110 The defense argued
105 See Browning, supra note 8, at 465, 467 (stating that lawyers in all areas of legal practice are attempting to discover social media information); Jonathan E. DeMay, The Implications of the Social Media Revolution on Discovery in U.S. Litigation, 40 Brief 55, 6263 (Summer
2011)(suggesting attorneys seek narrow discovery of social media information from plaintiffs
directly in order to get the best results); Gensler, supra note 7, at 8 (noting widespread discussion of social media discoverability).
106 See Kathryn R. Brown, Note, The Risks of Taking Facebook at Face Value: Why the Psychology of Social Networking Should Influence the Evidentiary Relevance of Facebook Photographs, 14 Vand.
J. Ent. & Tech. L. 357, 368 (2012); infra notes 106-40 and accompanying text (describing
recent cases on the issue of social media discovery).
107 270 F.R.D. at 43637; see, e.g., Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566,
57071(C.D. Cal. 2012) (citing Simply Storage when determining the relevant scope of discovery for social media information); Robinson v. Jones Lang LaSalle Americas, Inc., No.
3:12-CV-00127-PK, 2012 WL 3763545, at *1(D. Or. Aug. 29, 2012) (describing Simply Storage
as the most frequently cited and well-reasoned case on social media discovery); id. at *3,
n.4 (noting that treatises and law reviews have discussed Simply Storage as the benchmark on
social media discovery); Holter v. Wells Fargo & Co., 281 F.R.D. 340, 344 (D. Minn. 2011)
(adopting the reasoning in Simply Storage).
108 270 F.R.D. at 43637.
109 Id. at 432.
110 Id. The defendants specifically sought (1) all photographs or videos posted by
[plaintiff] or anyone on her behalf on Facebook or Myspace during a specified time period; and (2) electronic or hard copies of the plaintiffs complete profile[s] on Facebook
and Myspace (including all updates, changes, or modifications to [plaintiffs] profile[s])
and all status updates, messages, wall comments, causes joined, groups joined, activity
streams, blog entries, details, blurbs, comments, and applications. Id. In regards to applications, the requests specifically sought information on applications []including, but not
16
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that this social media content would provide relevant insight into the
cause of the plaintiffs emotional harm, which the EEOC, acting on
behalf of the plaintiffs, alleged was due to the defendants harassment.111 The EEOC refused to produce this information, describing it
as overbroad, not relevant, [and] unduly burdensome, and claiming
it invaded the plaintiffs privacy, and would harass or embarrass
them.112
The court first ruled on the general discoverability of social media.113 Although social media presents a new context for its application,
the court recognized the basic principles of discovery embodied in
Federal Rule of Civil Procedure 26 still applied.114 Rule 26 provides a
broad discovery standard that allows discovery of all material relevant
to the claim or material capable of producing relevant and admissible
information.115 The court further established that social media information was not barred from discovery solely because the user labeled it
private on the site, and therefore must be produced if relevant to a
claim or defense.116 However, recognizing the sheer volume of information available on social media sites, the court specified that courts
limited to, How well do you know me and the Naughty Application.[] Id. Specifically
identifying these applications, which seem to be about the plaintiffs personality and social
interactions, implies that the defense was seeking to create a particular image of the plaintiff
and raises concerns about the use of social media photos and information in a similar way
that a plaintiffs dress has been used in rape and sexual harassment cases. See Beiner, supra
note 4, at 126 (explaining concern about the bias dress continues to create for juries in rape
cases and how one would expect a similar result in sexual harassment cases).
111 Simply Storage, 270 F.R.D. at 43233 (explaining that the EEOC claimed the harassment increased the plaintiffs anxiety and caused depression). The EEOC has the authority
both to investigate charges of discrimination against employers, and if it finds discrimination has occurred, to attempt to settle or to file a lawsuit. See About EEOC, supra note 27.
112 Id. at 432.
113 Simply Storage, 270 F.R.D. at 43436 (establishing general discoverability principles for
social media information.
114 Fed. R. Civ. P. 26; Simply Storage, at 43334.
115 Fed. R. Civ. P. 26(b)(1). Rule 26(b)(1) provides the general scope rule for discovery
and allows parties to discover any non-privileged matter that is relevant to any party's claim
or defense . . . . Relevant information need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the discovery of admissible evidence. Id. Rule
26(b)(2)(c) provides a list of reasons the court may limit discovery requests. Fed. R. Civ. P.
26(b)(2)(c).
116 Simply Storage, 270 F.R.D. at 434(finding that although privacy concerns are often integral to determining whether a request for discovery is unduly burdensome, a person's
expectation and intent that her communications be maintained as private is not a legitimate
basis for shielding those communications from discovery.); see also Romano, 907 N.Y.S.2d at
65354 (finding the plaintiffs privacy argument unpersuasive because both Facebook and
Myspace describe themselves as ways to share information with others and allow users to
control their privacy settings).
2013]
17
117 Simply Storage, 270 F.R.D. at 435 (noting that although most social media communication would reflect a plaintiffs mental and emotional state that is hardly justification for
requiring the production of every thought she may have reduced to writing (citing Rozell v.
Ross-Holst, No. 05 Civ. 2936(JGK)JCF, 2006 WL 163143, at *34 (S.D.N.Y. Jan. 20, 2006)).
118 Id. at 436.
119 Id. at 43536 (noting that plaintiffs would likely exclude routine non-events from
their social media profiles that might indicate the supervisors behavior was typically appropriate and not the cause of their emotional distress).
120 Id. at 436.
121 Id. at 43637. Unless otherwise specified, social media evidence will refer to pictures, posts, status updates, and messages on Facebook, Twitter and/or Myspace.
122 Id. at 436; No. 2:06-CV-00788-JCM, 2007 WL 119149, at *6 (D. Nev. Jan. 9, 2007); see
Browning, supra note 8, at 474 (describing the Mackelprang decision as particularly illuminating to the issue of social media discovery).
123 Mackelprang, 2007 WL 119149, at *1.
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sors alleged sexual communications and that his conduct did not offend or emotionally harm her.124
Explicitly acknowledging Federal Rule of Evidence 412s bar to
admitting evidence of the plaintiffs sexual conduct, the Mackelprang
court limited discovery of the plaintiffs private Myspace messages to
those that contained information specifically about her sexual harassment claim or her alleged emotional distress.125 Other unrelated but
sexually provocative messages with third parties, however, were irrelevant, non-discoverable and non-admissible.126 Specifically, the court
recognized that a plaintiff might find certain sexual activity she enjoys
in her private life offensive when it comes from a fellow employee or a
supervisor.127 The court went on to instruct defense counsel that information from the Myspace account could be properly obtained only
through narrow requests for production to avoid production of information Rule 412 made irrelevant and inadmissible.128
Finding the Mackelprang courts reasoning persuasive indicated the
Simply Storage courts recognition of the potentially prejudicial impact
of social media content.129 The United States District Court for the District of Colorado applied similar reasoning when limiting discovery of
social media information in a sexual harassment case in its 2012 order
in E.E.O.C. v. Original Honeybaked Ham Co. of Georgia.130
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19
In Honeybaked Ham, the defendant sought electronic communications, including those on the plaintiffs Facebook accounts, to combat
claims that the plaintiffs suffered emotional harm due to the defendants sexual harassment.131 The court quickly dispensed with any issues
of privacy by acknowledging that the plaintiffs had voluntarily shared
this information with others on the social media sites.132 The court
then agreed with the defendant that the plaintiffs full, unredacted social media information was discoverable.133 Explicitly acknowledging
that it was not ruling as to admissibility, the court ordered production
of each plaintiffs social media content, specifically noting the potential
relevance of photographs and text that provided insight into the plaintiffs sexual activities, emotional state and financial expectations from
the lawsuit.134
Acknowledging the tenuous relevancy of certain evidence, however, the Honeybaked Ham court devised a process that reflects its balancing of the broad discoverability allowed in Simply Storage with the limit
established in Mackelprang.135 To weed out irrelevant information from
discovered social media content, the judge ordered the parties to provide access to their social media accounts directly to the court.136 The
court would then review the content in camera and provide only the
legally relevant social media information to the EEOC.137 The EEOC
would then exclude any privileged content, and could object to the
courts relevancy determinations.138 Then, the defendant would receive
the remaining, relevant information.139 The court determined that this
process would eliminate concerns about production of irrelevant evidence.140
131 Id. at *12.
132 Id. (noting that because the plaintiffs themselves made the information available to
others on Facebook there was a very strong case for production in terms of privacy concerns).
133 Id. at *2.
134 Id. at *12(stating that the court found the following potentially relevant to the defense: a photograph of the plaintiff wearing a shirt with the word CUNT in large letters
written across the front; statements by the plaintiff that losing a pet and ending a romantic
relationship caused her emotional distress; statements that indicated the plaintiff was sexually aggressive; evidence of sexually charged communications with other class members; her
post-termination employment opportunities; and her current financial condition).
135 Id. at *23; Simply Storage, 270 F.R.D. at 43537; Mackelprang, 2007 WL 119149, at *6
8.
136 Honeybaked Ham, 2012 WL 5430974, at *23.
137 Id. at *3.
138 Id.
139 Id.
140 Id. at *23.
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ing litigation and satisfies Rule 401s probative value test.154 For instance, many courts have found Tweets and Facebook posts to be relevant because they show the users state of mind.155
Nevertheless, Rule 403 may still bar some social media evidence.156
The Honeybaked Ham court implicitly acknowledged Rule 403s limit
when it expressed doubt that discoverable social media evidence would
ultimately be admissible.157
2. Sharing More Than Courts Should See: Social Media Evidence &
Exclusionary Rules of Evidence 404 & 412
Based on social media evidences content, Federal Rules of Evidence 404 and 412 are particularly relevant to determining social media informations admissibility.158 Federal Rule of Evidence 404(a),
which prohibits the admission of evidence for the sole purpose of convincing the jury that a partys past behavior makes them more likely to
have committed the bad act at issue, may bar a great deal of otherwise
useful social media evidence.159 The photographs on social media sites
that reveal users daily activities and the posts and tweets containing
users unfiltered thoughts provide powerful depictions of users beliefs,
typical practices, and emotional statethe crucial elements of ones
character. 160
154 Morales, supra note 5, at 33; see Fed. R. Evid. 401.
155 Christopher E. Parker & Travis B. Swearingen, "Tweet" Me Your Status: Social Media in
Discovery and at Trial, 59 Fed. Law. 34, 35 (Jan./Feb. 2012).
156 See Fed. R. Evid. 403; Morales, supra note 5, at 42 (noting that despite the value of
social media evidence, a Rule 403 challenge could still prevent the evidence from being
admitted).
157 See 2012 WL 5430974, at *2 (explaining that evidence intended to show the plaintiffs
positive attitude about certain sexual behaviors might not be admissible).
158 See infra notes 15966 and accompanying text (describing the type of character evidence and evidence of sexual conduct available on social media sites).
159 Fed. R. Evid. 404(a); see Aviva Orenstein, No Bad Men!: A Feminist Analysis of Character
Evidence in Rape Trials, 49 Hastings L.J. 663, 668 (1998) (explaining that Rule 404 prohibits
using evidence that the accused has a violent temper or started a fight in the past to argue
that he probably started the fight in question). Rule 404(b) allows the admission of character evidence to show motive, identity, knowledge, opportunity, intent, preparation, plan,
absence of mistake or lack of accident. Fed. R. Evid. 404(b)(2); Morales, supra note 5, at 41.
Rule 403s balancing test, which requires that the evidences prejudicial effects do not outweigh its probative value still applies. Morales, supra note 5, at 42; see Fed. R. Evid. 403.
160 Parker & Swearingen, supra note 155, at 3435([A}necdotal evidence suggests that a
user's social filter--that buffer that tells us what not to say and do at a dinner party--often
stops working the moment a person sits down in front of a computer screen without the
surrounding social constraints experienced in everyday life.); see Brown, supra note 106, at
373 (noting that social media evidence has been used to undermine criminal defendants
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23
remorse); Morales, supra note 5, at 41 (describing a Rule 404 challenge to character evidence in a criminal case).
161 See infra notes 16266 and accompanying text (describing the ways the structure of
social media sites provides insight into a users character).
162 Like, Facebook, http://www.facebook.com/help/like (last visited Feb. 22, 2013).
163 Id.
164 See FAQs about Following, Twitter, https://support.twitter.com/groups/31-twitterbasics/topics/108-finding-following-people/articles/14019-faqs-about-following (last visited
Feb. 22, 2013).
165 See id. (indicating that Twitter users follow people they find interesting or meaningful); The Like Button, Facebook, https://www.facebook.com/like (last visited Apr. 9, 2013)
(stating that the things you like on Facebook help friends get to know you better.).
166 See Morales, supra note 5, at 32 (stating that social media sites give lawyers access to
raw unfiltered evidence of a witness's activities, relationships, emotions, and thoughts.);
Orenstein, supra note 55, at 192 (explaining attorneys desire to gather uncensored information from social media sites).
167 See Fed. R. Evid. 412 (a) (stating the rule); Mackelprang, 2007 WL 119149, at *34
(providing an example of when social media evidence may be affected by Federal Rule of
Evidence 412).
168 Fed. R. Evid. 412(a); Beiner, supra note 4, at 126(describing Federal Rule of Evidence 412 as the federal rape shield law).
169 See Curcio, supra note 3, at 137 (describing the extension of Rule 412 to civil cases).
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claims at all.170 With the extension, Congress sought to protect plaintiffs' privacy and allow courts to focus their energies on ending legitimate workplace sexual harassment.171
Importantly, Rule 412(b)(2) provides an exception for civil cases.172 If the plaintiff brings her reputation or behavior into the case,
evidence of her private sexual conduct may be relevant and admissible
if its probative value substantially outweighs the danger of harm to any
victim and of unfair prejudice to any party.173Therefore, evidence of
past sexual behavior may be let in more often in civil cases than in
criminal cases, where Rule 412 does not provide such an exception.174
Although Rule 412 is an admissibility rule and therefore does not
govern the discovery process directly, the Advisory Committee note to
Rule 412 suggests that courts limit the scope of discovery using Rule
412s principles.175 The Advisory Committee note suggests that courts
presumptively enter protective orders if sought by the plaintiff, barring
discovery of evidence that Rule 412 makes inadmissible in order to
prevent unnecessary and embarrassing invasions into the plaintiffs private life.176 Because this discussion of discovery is limited to the Adviso170 Fed. R. Evid. 412 advisory committees note (stating the date of and reason for the
extension to civil cases); see Aiken, supra note 141, at 56162 (describing the extension of
Rule 412 and the private and sometimes embarrassing personal information that was admitted prior to Rule 412s extension); Beiner, supra note 4, at 128 (stating when Rule 412 was
extended to civil cases and but noting Rule 412(b)s exception); Curcio, supra note 3, at 126
(describing feminist scholars and activists dissatisfaction with Rule 412 prior to its extension to civil cases); id. at 135(citing case law where courts barred discovery of evidence of the
plaintiffs sexual history based on an application of Rule 412); id. at 137 (stating that Congress amended Rule 412 after public discussion of the issues involved).
171 Fed. R. Evid. 412 advisory committees note (explaining that Congress intended to
protect plaintiffs against invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of
sexual innuendo into the factfinding process.); Curcio, supra note 3, at 12627 (1998) (stating that Congresss goal in extending Rule 412 to civil cases was to protect plaintiffs and
encourage victims of sexual harassment to bring meritorious claims to court).
172 Fed. R. Evid. 412(b)(2); Beiner, supra note 4, at 12829 (stating the Rule 412(b) extension and its effects).
173 Fed. R. Evid. 412(b)(2).
174 Fed. R. Evid. 412(b)(2) advisory committees note; see Beiner, supra note 4, at 129.
The 412(b)(2) exception requires the proponent of the evidence, typically the defendant,
to justify the admission of the evidence. Id.
175 See Fed. R. Civ. P. 26; Fed. R. Evid. 412 advisory committees note; Katie M. Patton,
Note, Unfolding Discovery Issues That Plague Sexual Harassment Suits, 57 Hastings L.J. 991,
99495 (2006) (describing the Advisory Committees note and its goals).
176 Fed. R. Evid. 412(c) advisory committees note; see Mackelprang, 2007 WL 11914, at
*34 (citing the Advisory Committee note to Rule 412). The Advisory Committee note explains that plaintiffs may seek protective orders under Federal Rule of Civil Procedure
26(c). Fed. R. Evid. 412 advisory committees note. Rule 26(c) states that: A party or any
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person from whom discovery is sought may move for a protective order . . . . The court may,
for good cause, issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense. Fed. R. Civ. P. 26(c).
177 See Fed. R. Evid. 412 advisory committees note; Beiner, supra note 4, at 13031 (discussing how courts must continue to choose when to apply Rule 412 to discovery).
178 See Mackelprang, 2007 WL 119149, at *6 (explaining that the Myspace messages with
non-employees were not discoverable because there was not a sufficiently relevant connection between those messages and her claims of sexual harassment).
179 Id. (noting that courts applying Rule 412 have declined to recognize a sufficiently
relevant connection between a plaintiff's non-work related sexual activity and the allegation
that he or she was subjected to unwelcome and offensive sexual advancements in the workplace).
180 See Fed. R. Evid. 412; Mackelprang, 2007 WL 119149, at *6.
181 See Curcio, supra note 3, at 125 (acknowledging that gender myths and sexual stereotypes influence the type of evidence admissible in sexual harassment cases); infra notes 182
293 and accompanying text.
182 John M. Singleton, Effective Strategies for Mounting a Successful Sexual Harassment Case,
in Inside the Minds: Representing Employees in Sexual Harassment Cases: Leading
Lawyers on Managing Sexual Harassment Disputes and Achieving Successful Resolutions, 61, 62 (Aspatore, 2012), available at 2012 WL 3058273, at *1.
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freely by plaintiffs on social media sites is not protected in the same way
as something said in a private home.197
Diminished privacy concerns matter because social media content
provides, along with relevant evidence, a great deal of irrelevant information about a plaintiffs appearance, sexual relationships and otherwise private interactions.198 For instance, a Facebook profile documents
the users romantic relationship status and tracks changes in that relationship.199 Facebook profile pictureswhich are almost always publically viewablemost often depict users as attractive, and interested in
romantic relationships.200 Consequently, incorporating limited privacy
concerns for social media evidence into Rule 412(b)s exception could
provide judges and juries with increased access to evidence of the
plaintiffs personal life and sexual conduct, and essentially override the
protections Congress sought with the extension of Rule 412.201
Presenting a more abstract barrier, the successful application of
Rule 412 also relies on judges overcoming their own gender bias and
subconscious beliefs about sexual harassment when determining admissibility.202 It is impossible to calculate the influence of gender bias
on a judges decision to admit certain evidence, but it unquestionably
plays a role in admissibility decisions.203 In civil sexual harassment suits
particularly, judges have greater discretion to apply Rule 412 than they
deed, as neither Facebook nor Myspace guarantee complete privacy, Plaintiff has no legitimate reasonable expectation of privacy); Browning, supra note 8, at 494 (citing a Magistrate
Judge stating one does not venture onto a social networking site to engage in a soliloquy.).
197 See, e.g., Honeybaked Ham, 2012 WL 5430974, at *1 (stating that plaintiffs social media
profile was essentially an Everything About Me folder to which the defendant might need
access); Simply Storage, 270 F.R.D. at 434 (noting that marking information as private on a
social media site does not create a right to privacy); Romano, 907 N.Y.S. 2d, at
655(explaining that the Fourth Amendment constitutional right to privacy protects people,
not places like a social media site).
198 See Bianca Boster, What Facebook Knows About Our Break-ups and Romances, Huffington Post (Mar. 23, 2012 3:46 PM) http://www.huffingtonpost.com/2012/03/23/facebookbreak-ups-relationships_n_1375822.html (explaining that Facebook relationship statuses
provide insight into the users dating style and other behavior).
199 Id.
200 See Brown, supra note 106, at 365 (noting a 2008 study revealing that Facebook profile pictures are most often chosen to depict the user as attractive, fun-loving, humorous, or
in a successful romantic relationship).
201 See Curcio, supra note 3, at 139 (beginning to explain how the balancing test embodied in Rule 412(b) results in inconsistent protections for sexual harassment plaintiffs); see,
e.g., Honeybaked Ham, 2012 WL 5430974, at *23 (allowing broad social media discovery despite Rule 412).
202 See Curcio, supra note 3, at 15759.
203 See id. at 15966 (discussing gender bias playing an explicit or implicit role in sexual
harassment cases and various stereotypes about women that play a role).
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do in criminal cases.204 Therefore, judicial biases can significantly impact what evidence of a plaintiffs sexual behavior the court allows.205
The courts lack of familiarity with social media sites and the
changing social norms reflected on them will exacerbate the problem
of gender bias in admissibility decisions.206 The desire to create a likable online persona results in users posting pictures of themselves that
conform to societys notions of attractiveness or show them as more
extraverted than they actually are. 207 Though current case law has not
yet addressed it directly, a picture of a plaintiff socializing with male coworkers in which she appears flirtatious or outgoing could undermine
her claims that sexual advances from a supervisor were unwelcome.208
Beyond Rule 412, social medias limited ability to accurately reveal
a plaintiffs mental state or her genuine social interactions will hurt
sexual harassment plaintiffs who seek damages for emotional harm.209
Ever since Congress amended Title VII to allow compensation for emotional harm caused by sexual harassment, many plaintiffs have sought
such damages.210 When they do, they place their psychological history
into controversy and thus are vulnerable to admission of any evidence
that implies something other than the alleged harassment caused the
emotional harm.211 Defendants may seek admission of social media evidence to prove a sexual harassment plaintiff enjoyed her work, got
along with her colleagues, or was depressed for reasons other than the
harassment.212
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However, social media evidence is particularly unreliable for proving a plaintiffs emotional state because users often project happiness
on social media even when they are dealing with emotional distress.213
Nevertheless, courts in a variety of civil suits have admitted social media
evidence as a convincing snapshot of the user's relationships and state
of mind at the time of the content's posting.214 Until courts recognize
social medias limitation, social media evidence will continue to be given more weight than it deserves, undermining plaintiffs claims of
emotional harm in sexual harassment cases.215
B. The Impact of Social Media Discovery in Sexual Harassment Cases
Given the accepted relevancy of social media evidence, its broad
discoverability and a history of courts misapplying or ignoring Rule 412
in sexual harassment cases, social media content containing evidence
of the plaintiffs past sexual conduct likely will be admitted whenever it
is found discoverable.216 Therefore, the discovery stage will play a critical role in determining the impact of social media evidence on sexual
harassment plaintiffs.217 This is particularly problematic because the
discovery process has long been more hazardous to sexual harassment
plaintiffs than to those in other civil suits.218
Chiefly, sexual harassment plaintiffs face increased dangers during
discovery because defense counsel can intimidate plaintiffs during the
discovery process where Rule 412 does not sufficiently guard against
abusive, probing discovery techniques.219 As an evidentiary rule, Rule
412 adequately protects victims in criminal cases because the trial is the
213 Brown, supra note 106, at 36465, 38082.
214 Bass v. Miss Porter's Sch., No. 3:08cv1807 (JBA), 2009 WL 3724968, at *12 (D. Conn.
Oct. 27, 2009)(requiring further production of information from the plaintiffs Facebook
account because each snapshot could provide relevant information); Brown, supra note
106, at 380 (discussing the proper use of social media evidence in personal injury cases to
show physical harm).
215 See Brown, supra note 106, at 39293.
216 See Brown, supra note 106, at 392 (describing social media evidences increasing role
in litigation); supra notes 14757 and accompanying text (describing the relevancy of social
media evidence); supra notes 10821 and accompanying text (examining the Simply Storage
decision and social media evidences broad discoverability); supra notes 189201 and accompanying text (discussing the limits of Rule 412 as applied to sexual harassment cases).
217 See Curcio, supra note 3, at 13940 (explaining the vulnerability of sexual harassment
plaintiffs at the discovery stage).
218 Id. at 14042 (describing problems with using Rule 412 to protect sexual harassment
plaintiffs during discovery).
219 Id.; Patton, supra note 175, at 993; see Aiken, supra note 141, at 56061.
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first time opposing counsel can inquire into their personal life.220 If the
court allows broad and invasive discovery, the plaintiff has no choice
other than to comply with the discovery request, dismiss her claim, or
to settle her claim.221
The lack of protection from discovery of the plaintiffs private sexual conduct often deters victims of sexual harassment from bringing a
suit at all.222 The invasive discovery process may be as emotionally devastating for plaintiffs as the harassment itself.223 Therefore, sexual harassment plaintiffs find little comfort in the knowledge that much of the
information produced during discovery will likely prove inadmissible at
trial.224
Despite Rule 412s Advisory Committee note encouraging courts
to apply Rule 412s principles to discovery, several problems with the
notes language have prevented it from adequately protecting plaintiffs
in sexual harassment cases.225 First, the Advisory Committee note says
courts should presumptively enter protective orders to limit invasive
and irrelevant inquiries into the plaintiffs private life and not
must.226 Consequently, the permissive statutory language allows
courts to utilize Rule 412s limiting suggestion on a case-by-case basis
leading to inconsistent and unfair results for plaintiffs.227
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Secondly, the note first requires plaintiffs to seek a protective order for Rule 412 to apply at the discovery stage at all.228 Therefore, inexperienced or poorly counseled plaintiffs will likely have their private
sexual conduct on display during discovery.229 Placing this burden on
plaintiffs makes Rule 412s already non-binding application to discovery even more limited; if a plaintiff fails to move for a protective order,
no other bar exists to seeking this irrelevant information.230
Recent rulings allowing broad discovery of social media evidence
in sexual harassment cases further indicate that social media evidence
will increase the existing vulnerability of sexual harassment plaintiffs
during discovery.231 Neither the United States District Court for the
Southern District of Indianas 2010 decision in E.E.O.C. v. Simply Storage
Management, nor the United States District Court for the District of
Colorados 2012 decision in E.E.O.C. v. Original Honeybaked Ham Co. of
Georgia mentioned the potential limits of Rule 412 on discovery.232 In
fact, the Honeybaked Ham court explicitly acknowledged that it was not
ruling as to admissibility, and noted that the court remained unconvinced that all of the discovered information would be relevant and
admissible at trial.233 Although this statement provides clarity about the
scope of the courts decision, it fails to provide the protection for sexual harassment plaintiffs that the Advisory Committee suggested in its
note to Rule 412.234 In sum, these rulings allowing broad discovery of
social media evidence support the argument that concrete changes
must be made at the discovery stage to prevent increased harm to sexual harassment plaintiffs from social media evidence.235
228 Fed. R. Evid. 412 advisory committees note; Aiken, supra note 141, at 567.
229 Bell, supra note 221, at 289.
230 Aiken, supra note 141, at 567.
231 See Honeybaked Ham, 2012 WL 5430974, at *13 (allowing broad discovery and emphasizing that the courts decision applied only to discovery by stating I am not determining what is admissible at trial.); Simply Storage, 270 F.R.D. at 437 (noting that the courts
order for production did not automatically make the social media content admissible).
232 See Honeybaked Ham, 2012 WL 5430974, at *2-3; Simply Storage, 279 F.R.D. at 43536.
In Simply Storage, the court allowed broad discovery of the plaintiffs full Myspace profiles,
including postings, messages, applications, some third party communications, and all photographs taken and/or posted during the claims relevant time period. Simply Storage, 279
F.R.D. at 43536. Similarly, in Honeybaked Ham, the court ordered production of the plaintiffs full social media profile. Honeybaked Ham, 2012 WL 5430974, at *23.
233 Honeybaked Ham, 2012 WL 5430974, at *1, *3.
234 See Fed. R. Evid. 412 advisory committees note; Honeybaked Ham, 2012 WL 5430974,
at *1.
235 See Honeybaked Ham, 2012 WL 5430974, at *2; Simply Storage, 279 F.R.D. at 43536.
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social media evidence for judicial action to have meaningful and longlasting effects.242
A. Its Always Been Broken: How the Inclusion of Social Media Evidence Highlights the Existing Vulnerability of Sexual Harassment Plaintiffs During Discovery
The accessibility, volume of information provided, and courts diminished privacy concern for social media evidence will intensify the
long-existing vulnerability of sexual harassment plaintiffs during discovery.243 Discovery of a sexual harassment plaintiffs full Facebook
profilea recently approved discovery requestprovides a concrete
example of this increased impact.244
At minimum, a Facebook profile provides the defendant with a
profile picture and other photographs of the user, comments made by
or about the plaintiff, and often the users relationship status.245 Thus,
without any depositions or lengthy interrogatories to obtain similar
photographs or statements in a traditional form, discovery of a Facebook profile could quickly provide the defendant with damaging images of the plaintiff and unnecessary insight into her romantic relationships.246 The same result could arise from discovery of a plaintiffs
Twitter or Myspace account.247 Therefore, social media evidence
heightens the threat of exposure of sexual harassment plaintiffs sexual
conduct because it provides such evidence faster and on a larger scale
242 See infra notes 29098 and accompanying text.
243 See DeMay, supra note 105, at 55 (describing the constant and instantaneous access to
information social media provides); see infra notes 24653 and accompanying text (describing how social media evidence increases sexual harassment plaintiffs existing vulnerability).
244 See Bass v. Miss Porter's Sch., No. 3:08cv1807 (JBA) 2009 WL 3724968, at *12 (D.
Conn. Oct. 27, 2009)(ordering production of the plaintiffs complete Facebook profile because the courts review of the unproduced profile contained information that was clearly
relevant); DeMay, supra note 105, at 56 (explaining that discovery of social media provides
parties with access to more information than traditional forms of evidence).
245 See Introducing Timeline, Facebook, supra note 70.
246 See DeMay, supra note 105, at 56 (stating that discovery of social media provides parties with the opportunity to obtain information about which they might otherwise be unaware); Curcio, supra note 3, at 13839 (explaining that Rule 412s Advisory Committee note
aims to avoid discovery of the plaintiffs sexual history to prevent sexual stereotyping. . . . associated with public disclosure of intimate sexual details and the infusion of sexual
innuendo into the fact finding process).
247 See Browning, supra note 8, at 465 (describing an example outside of sexual harassment in which tweets could be used against someone in litigation); see supra notes 6977 and
accompanying text (explaining similarities of the information contained on Myspace and
Facebook).
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2013]
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262 See Beiner, supra note 4, at 131-32 (explaining that when courts do not mention Rule
412, it is difficult to determine whether the court applied Rule 412 in sexual harassment
cases in which evidence of sexy dressing was admitted or excluded).
263 See Browning, supra note 8, at 474 (stating that the Mackelprang decision is particularly helpful to courts determining the discovery of social media evidence); cf. Beiner, supra
note 4, at 132 (explain how a lack of discussion of Rule 412 makes it difficult for other
courts to follow the decision).
264 2012 WL 5430974, at *23 (noting that the court was uncertain that evidence indicating the plaintiffs positive attitude about certain conduct would ultimately be admissible
and therefore establishing a limiting discovery process).
265 Id.
266 See id.; Brown, supra note 106, at 387 (suggesting courts use in camera review to extract relevant information from the mass of irrelevant information provided on Facebook);
supra notes 21624 and accompanying text(explaining why sexual harassment plaintiffs fear
exposure and embarrassment at the discovery stage).
267 See Honeybaked Ham, 2012 WL 5430974, at *23 (allowing discovery of all information
relevant to the defense).
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268 See Bass 2009 WL 3724968, at *12 (D. Conn. 2009) (ordering additional discovery
because the plaintiffs original production inadequately responded to the defendants request).
269 See supra notes 26063 and accompanying text (describing why an explicit reference
to Rule 412 is helpful to courts determining the admissibility of evidence of a plaintiffs private sexual conduct); infra notes 27072 and accompanying text.
270 See 2012 WL 5430974, at *23.
271 See id. at *2 (identifying evidence from Facebook of the plaintiff wearing a shirt with
the word CUNT in large letters written across the front (a term that she alleges was used
pejoratively against her, also alleging that such use offended her) her self-described sexual aggressiveness[and] sexually amorous communications with other class members as
potentially relevant).
272 See Beiner, supra note 4, at 13132 (explaining that it is difficult to determine whether the court applied Rule 412 in sexual harassment cases in which evidence of sexy dressing
was admitted or excluded because the courts did not mention Rule 412 in their decision).
273 Brown, supra note 106, at 388 (noting that an in camera review requires significant
judicial resources.
274 See Brown, supra note 106, at 388 (discussing one judges doubts about his ability to
accurately determine which social media evidence would be relevant during an in camera
review).
275 See id.; Gensler, supra note 7, at 26 (stating that courts do not want to take on the impractical task of sifting through discovery production unguided).
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that the court understands its obligation to balance the goals of the two
rules and that it will not allow defendants to circumvent the limits of
Rule 412.282
The in camera review similarly relieves plaintiffs concerns that
defendants will have access to private and potentially embarrassing information.283 Because social media content often contains both relevant and unfairly prejudicial evidence, an in camera review is particularly helpful to eliminating social media evidence that is irrelevant for
reasons beyond those contained in Rule 412.284
Additionally, utilizing an in camera review for social media evidence would allow attorneys to present research about social medias
inability to accurately portray the users emotional state, thus reducing
the risk of juries giving excessive value to social media content by preventing the jury from ever seeing such evidence.285
Consistently using this proposed judicial action will lessen the
need for some of the more drastic changes suggested to protect sexual
harassment plaintiffs, such as amending Rule 412 or the Federal Rules
of Civil Procedure.286 The U.S. Supreme Courts hesitation about extending Rule 412 to civil cases indicates the Courts disapproval of
changes to the Rules of Evidence that might unduly burden defendants
by over restricting their sources of evidence.287 Further, the agreement
282 Id. at 998 (indicating that judges must show their awareness of the policy balance between Federal Rule of Civil Procedure 26 and Federal Rule of Evidence 412 when determining the scope of discovery to give clear signals to both plaintiffs and defendants).
283 See Brown, supra note 106, at 392 (describing how in camera review allows courts to
focus only on relevant evidence); Curcio, supra note 3, at 175 (explaining that women may
choose not to pursue a sexual harassment claim if they fear exposure of their private sexual
conduct).
284 See Honeybaked Ham, 2012 WL 5430974, at *23 (allowing the plaintiff to object to the
relevancy of evidence produced during the in camera review or to claim that certain information was privileged); Brown, supra note 106, at 37172 (describing how courts have already used an in camera review to determine the relevancy of social media evidence in different types of cases); id. at 38687 (advocating for using an in camera review of Facebook
evidence as an effective means of limiting irrelevant or unfairly prejudicial Facebook content).
285 See Brown, supra note 106, at 38788.
286 See Aiken, supra note 141, at 582 (proposing an amended Rule 412 that explicitly
identifies when evidence of sexual conduct might be relevant); Bell, supra note 221, at 342
(suggesting an amendment to Federal Rule of Civil Procedure 26 to protect sexual harassment plaintiffs rather than Rule 412); but see Gensler, supra note 7, at 910 (stating why
amending the Rules of Civil Procedure to accommodate social media evidence is an unrealistic solution and explaining that existing judicial action provides sufficient methods of dealing with discovery of social media evidence).
287 See Letter of April 29, 1994 from Chief Justice William Rehnquist to John F.
Gerry, contained in Communication from the Chief Justice, the Supreme Court of
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41
the United States H.R. Doc. No. 103-250, at VVI (1994); Aiken, supra note 141, at 570
(noting that the Supreme Courts resistance to extending Rule 412 to civil cases indicates a
purposeful limited application); supra notes 18590 and accompanying text (describing the
Courts resistance to the extension of Rule 412).
288 See e.g., Gensler, supra note 7, at 3133, 36 (explaining the virtual impossibility of
promulgating effective discovery rules specifically for social media); Morales, supra note 5, at
43 (determining that traditional evidentiary principles can be adapted for social media evidence); Boggs & Edwards, supra note 100, at 367 (discussing how discovery and admissibility
decisions will be made regarding social media evidence).
289 See supra notes 27688 and accompanying text.
290 See Brown, supra note 106, at 381; Curcio, supra note 3, at 18182.
291 Patton, supra note 175, at 995. These stereotypes may include: assuming the plaintiff
caused or initiated the sexual conduct; that women assume the risk of harassment by dressing or behaving a certain way; and that women are responsible for not preventing sexual
conduct from going too far. Aiken, supra note, 141, at 57071. These ideas stem from traditional notions of gender roles and are widely held by both men and women. Id. Subconsciously, judges may rely on these notions to determine why some women are victimized and
others are not. See id.
292 Aiken, supra note 141, at 57071 (explaining that judges cannot properly determine
the probative value of evidence of sexual misconduct); Curcio, supra note 3, at 181 (noting
that the first step to educating oneself about gender bias is recognizing that the problem
exists); see Martha Minow, Justice Engendered, 101 Harv. L. Rev. 10, 79 (1987)(suggesting that
judges apply strict scrutiny to [them]selves to overcome issues of bias).
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Judges must also recognize their lack of appreciation for the complex social norms embedded in social media sites.293 Social science experts who have studied social medias nuances and how observers interpret social media evidence could provide invaluable education to
judges and juries that would prevent courts from assigning social media
evidence undue probative value.294
Congress should provide funds for judges and juries to receive education about the sexual stereotypes that still exist and how even unconscious biases can greatly affect their decisions.295 Further, judges
should consider the research about the limited value of social media
content when evaluating emotional harm.296 Increased awareness of
the stereotypes and biases underlying their decisions may force a judge
to examine discovery requests more carefully and potentially give
greater weight to Rule 412s principles when applicable to the evidence
at hand.297 A fuller understanding of social media evidence will help
judges treat social media content appropriately.298
Conclusion
Recent determinations that social media evidence is broadly discoverable and generally admissible pose a unique danger to plaintiffs
in sexual harassment cases. Although sexual harassment plaintiffs have
long been more vulnerable at the discovery stage than other civil plaintiffs, social media evidence increases that danger. Social media evidence provides a new source of information that is less limited by privacy concerns and contains a blend of both relevant and irrelevant
evidence. A seemingly harmless picture posted by the plaintiff might
also contain comments from other users describing her behavior or
reveal aspects of her private life that should be prohibited.
Social media content also fails to provide an accurate picture of
the plaintiffs mental state, and therefore is less reliable in a sexual
harassment case in which it is used to prove subjective experience of
the harassment. Therefore, in order to use social media evidence in
293 See Brown, supra note 106, at 392 (stating that to ensure fairness in cases involving social media evidence, courts must evaluate the evidence within the context of social norms).
294 See id. at 39293.
295 Curcio, supra note 3, at 18182.
296 See Brown, supra note 106, at 381.
297 See id.
298 See Curcio, supra note 3, at 166 (stating that Rule 412 can best protect sexual harassment plaintiffs after judges recognize the gender bias implicit in their decision making).
2013]
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