In Smizer v. Cmty. Mennonite Early Learning Ctr., the Plaintiff claimed he was the subject of gender discrimination, because he was terminated for being tardy and having a messy classroom. Smizer v. Cmty. Mennonite Early Learning Ctr., 2011 U.S. Dist. LEXIS 102212, at *1-2 (N.D. Ill. Sept. 7, 2011).
The Defendant claimed the reason for the Plaintiff’s termination was because of “a troubling Facebook posting” the Plaintiff made about the Defendant’s employees. Id.
The Plaintiff sought certain discovery regarding female employees tardiness and lack of classroom cleanliness to show these were “not reasonable bases for firing him while his female counterparts remained employed.” Smizer, at *2.
The Defendant claimed this discovery was irrelevant, because no female employee was terminated for a Facebook status message, thus there were no similarly situated female employees. Id.
The Court disagreed, allowing discovery of female employee timecards and classroom cleanliness. Smizer, at *2-3. The Court stated:
Rule 26 of the Federal Rules of Civil Procedure makes clear that at the discovery stage, information requested must be “reasonably calculated to lead to the discovery of admissible evidence.” While CMELC claims now that Smizer’s Facebook posting was the sole cause of his termination, Smizer has provided the Court with ample documentation from within CMELC indicating that CMELC claimed at various other times that there were other reasons for his termination, including his tardiness and lack of cleanliness. By raising these other justifications, CMELC opened itself up to related discovery if for no other reason than that “a shifting justification for an employment action can itself be circumstantial evidence of an unlawful motive.” Chaney v. Plainfield Healthcare Center, 612 F.3d 908, 916 (7th Cir. 2010). Because CMELC’s various justifications for firing Smizer may therefore be admissible at trial, evidence about the validity of those justifications may also be relevant. At least some of Smizer’s requests are therefore reasonably calculated to lead to the discovery of admissible evidence.
Smizer, at *2-3.
In Dollman v. Mast Industries Inc., the Plaintiff sought to introduce at trial a status comment of her former manager that the manager was not getting sufficient sleep because of an unlawful activity. Dollman v. Mast Indus., 2011 U.S. Dist. LEXIS 99802, 10-12 (S.D.N.Y. Sept. 6, 2011)
The manager denied making the status comment, claiming that her former boyfriend made the comment on her profile after hacking her account. Dollman, at *11.
The Court quickly fired multiple torpedoes to sink admitting the status comment at trial. First, the Court found the message to have “no possible relevance.” Dollman, at *12. Secondly, the Court found the message could be classified as “banter.” Third, even if the message was true, admitting it would unfairly prejudice the Defendant, embarrass the manager and “draw the jury’s attention away from the probative facts.” Id.
Bow Tie Thoughts
In one of the above cases, a party tried to use social media as a shield against further discovery; in the other, a sword to attack a witness’ credibility.
Courts have always been the guardians of the justice system to ensure the truth is discovered in a lawsuit. This duty has become more complex with litigants living their lives on social networking sites. Courts will continue to evaluate what is reasonably calculated to lead to the discovery of admissible evidence and what is nothing more than a prejudicial distraction from the merits of a case.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.