Facebook Posts May Not Be So Private

My friend Matt Dooley sent this Mashable piece to me. It talks about a judge’s ruling in a former Home Depot employee’s case against the giant retailer that allowed Home Depot to obtain in discovery certain Facebook postings the employee made. “Discovery” is that portion of a civil lawsuit where either party can require the other party to provide information about its case. This may burst the collective bubbles of readers who watch a lot lawyer shows on TV, but there are rarely surprises in a civil trial. Lawyers will have seen every piece of evidence that the other side offers, thanks to discovery. And this will not come as a shock, but some lawyers abuse the discovery process by asking for utterly irrelevant information designed to drive up the other side’s cost of litigating the case. Of course, the lawyers who do that are very good at piously contending that they desperately need all of that minutia to try their case. There is some of that on display in the Home Depot case. The plaintiff in the case claimed that Home Depot fired her because of her gender and because of a medical condition. If so, that would constitute employment discrimination. Apparently the Home Depot lawyers asked the plaintiff to produce “status updates, wall comments, causes joined, groups joined, activity streams, blog entries from social-networking sites from October 2005 through the present, that reveal, refer, or relate to any emotion, feeling, or mental state of plaintiff.” I’m not sure why they didn’t simplify the request and ask the plaintiff to just turn over her laptop. The court found the request “impermissibly over broad” (ya think?). But it did require the plaintiff to produce any posts that discussed working at Home Depot or messages to her fellow employees. My sense is that Chris Taylor, the author of the Mashable piece, found this to be a pretty intrusive result. I base this conclusion on the enormous thumbs down graphic at the top of the article. I am very perceptive. But I guess I’m desensitized from my nearly 30 years of practicing law. I think Home Depot has the right to discover statements that might create doubt about the plaintiff’s case, or her true motivation. If those are contained in Facebook posts, they are probably fair game. Am I missing something here?