The Downside of Being a Plaintiff

A woman named Martha Fox recently learned what others have discovered before her.  Being a plaintiff in a civil lawsuit has its downsides.  One of those is the discovery process.  

Ms. Fox brought a lawsuit against Pittsburg State University in a federal court in Kansas.  Pittsburg State is located in Pittsburg Kansas.  Note that Pittsburg Kansas has no “h” on the end, unlike Pittsburgh, PA.  But I digress. Ms. Fox alleged in her lawsuit that she’s been the victim of harassment from a fellow employee at PSU.  Ms. Fox alleged in the complaint that PSU was liable for the employee’s conduct.  

PSU did what most defendants do when confronted with a civil suit – it served discovery on Ms. Fox.  Parties to a civil suit are entitled to discover information about the case from the other side.  In major commercial litigation, this process can take years and result in the production of millions of documents.  But even in smaller suits, most parties take advantage of the opportunity to learn as much as possible about the strengths and weaknesses of their case.  For a plaintiff in Ms. Fox’s shoes, that may mean turning over material she’d rather not share.   

In this case, PSU asked Ms. Fox and her husband whether they’d maintained any social media presence during the past five years and asked Ms. Fox to identify the scope of that presence, including user names and passwords.  PSU also asked for copies of social media postings, blogs, or other statements on social media by Plaintiff or her husband “relating to [her] alleged claims and allegations in her Complaint” and “relating to [her] claims of mental or emotional damages and causes” thereof.

Ms. Fox objected to these requests because in her view, they were “overly broad” and sought irrelevant material.   Ms. Fox essentially contended that filing a lawsuit is not an invitation for the defendant to root through every aspect of her online activity.   

The court disagreed.  It noted that the question of relevance for discovery purposes is a little different than relevance at trial.  At the discovery stage, the question isn’t whether the discovery will necessarily unearth something relevant, but rather whether the discovery is “reasonably calculated” to lead to the discovery of relevant information.   The party issuing the discovery doesn’t have to demonstrate with 100% certainty that the request will hit pay dirt, merely that it might.  In fact, the only discovery not permitted is that which “can have no possible bearing on the subject matter of the action.”  

Viewed in that expansive light, the court was pretty much bound to dismiss Ms. Fox’s objections.  PSU asked Ms. Fox only to produce copies of social media posts that related to her claims against PSU.  It didn’t ask her to produce every post she’d made in the last 5 years.   Once again, the Internet doesn’t really change the underlying principle of discovery, just the platform.  Assuming it’s not unreasonable to ask a plaintiff if she discussed her claims with anyone, it doesn’t seem unreasonable to ask to see any conversations she had online.  Plaintiffs may not wish to sacrifice their privacy just by filing a lawsuit, but to a degree, it’s probably impossible not to.