I am emotionally distressed over being wrong, very wrong last month when I suggested that Eric Meyer had stepped over the proportionality line in my blog post on Social Media, Permanent Records and Ediscovery ^[1].  (Register here for the Fios webcast Social Media, Permanent Records and Ediscovery, taking Social Media through the EDRM ^[2].)

Eric Meyer has written a comprehensive article ^[3] on how to obtain social media evidence for The Legal Intelligencer. He goes a little far afield in the age of proportionality to suggest:

So, as part of discovery, an employer should consider requesting:

All online profiles, postings, messages (including, without limitation, tweets, replies, retweets, direct messages, status updates, wall comments, groups joined, activity streams, and blog entries), photographs, videos, and online communications that:

1. refer or relate to the allegations set forth in the complaint;

2. refer or relate to any facts or defenses raised in the answer;

3. reveal, refer or relate to any emotion, feeling, or mental state; or

4. reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.

An Indiana magistrate judge in EEOC v. Simply Storage Mgmt., LLC, No. 1:09-cv-1223-WTL-DML (S.D. Ind. May 11, 2010) ^[4] goes one better and adds “causes joined” to the list of discoverable material.

Judge Debra McVicker Lynch considered proportionality explicitly in this decision and drew lines around material that was demonstrated to be applicable to the claims and defenses.  She did not allow wholesale discovery, but approved targeted discovery.  She did not allow the discovery around garden variety emotional distress, but did allow it for extreme emotional distress and post traumatic stress disorder (PTSD) claims.  Curiously, she did not allow exploration of past employment.

The ordered “targeted” discovery was very broad, however, and included all of the above, whether locked behind privacy settings or not.

This case will have broader implications than emotional distress claims.  It is applicable to any case that includes “state of mind”, scienter,  intent or character.

With apologies to Eric Meyer, please consider our invitation to join ^[2] as we walk through the EDRM, exploring a variety of tools and approaches to handle social media in light of emerging decisions.

Fair warning: the webcast will be more about the technical than the legal.  It will include an overview of existing tools.  I am hopeful our community will help vet them for evidence handling, as many of them originally were designed to track reputation management or marketing campaigns.