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Tenth Circuit Court Grants Request For Social Media Posts Related To Emotional State And Physical Activity

In Gordon v. T.G.R. Logistics, Inc., a personal injury case, the court ordered the plaintiff to produce her entire “Facebook account history” from the date of the accident onward to the extent such posts related to her emotional state and physical activity.  The defendant had requested the history of the plaintiff’s Facebook accounts dating back three years before the accident. At the time of the request, the plaintiff had already delivered Facebook information pertaining to a set of keywords requested by the defendant.  The plaintiff responded that the additional request for three years backlog of Facebook information exceeded the limits of discovery and was unduly burdensome and invasive.  The court recognized that the defendant was casting a wide net with this broad discovery request, but was not convinced the plaintiff had produced all of the relevant Facebook information.  The court limited discovery request to information posted after the accident and granted the motion to compel discovery.

In reaching its decision, the court focused on the expanding amount of data available for discovery and on the challenges posed by social media. The court first recognized that there is an ever expanding amount of data being created in modern times, noting that, “More data has been created in the last two years than in the entire history of the human race, and the amount of data is projected to grow 10-fold by 2020.”  This ever expanding source of electronically stored information makes limiting the scope of discovery difficult.

The court then considered the recent trend of people posting their thoughts and feelings on social media. What used to be considered private information is now commonly written down and recorded for a group of loosely defined friends and acquaintances to read and see. The court recognized that in cases concerning a person’s physical or mental health, almost any post to social media could provide some sort of relevant information or insight into the person’s thought process.  However, the court also noted that allowing broad discovery of social media activity creates the likelihood that more information will be disclosed “than has historically occurred in civil litigation.” The court held that simply because information is easily and inexpensively obtainable, does not mean that it is discoverable.

The court stated that although there are concerns regarding the scope of social media discovery, the defendant here has presented a “legitimate interest in discovery which is important to the claims and damages it is being asked to pay.” The court examined several cases where social media discovery had been allowed, noting that in employment cases where claims of emotional distress are involved, discovery of social media histories is more easily justified.  When the claim involves the plaintiff’s mental state, social media activity can provide relevant information.  The court used the same concept in this case concerning the cognitive and emotional damages claimed. While the court believed that the defendant was casting too wide a net with its request for three years of social media posts pre-dating the accident, the court also recognized the need for relevant information about the plaintiff’s mental state and cognitive ability after the accident.  For these reasons, the court limited the request to all posts and pictures after the accident which addressed the plaintiff’s emotional state and physical activity and then granted the motion to compel discovery.

This decision highlights the growing scope of electronic discovery, especially as it pertains to social media. The court recognized that social media can provide insight into a person’s mental state and thought process that was previously unavailable.  Additionally, the court specifically pointed out that in an employment context social media history can be particularly useful.

Kurt Ferdenzi is the author of this article. 

Jackson Lewis P.C. © 2020


About this Author


Brett M. Anders is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He exclusively represents management in workplace law, including counseling and litigation.

Mr. Anders routinely advises clients regarding day-to-day employment issues, such as employee discipline and discharge, disability management issues, reductions-in-force and restrictive covenants. He also regularly conducts training programs for employers on a variety of employment-related topics, such as performance management, sexual harassment awareness and...