A Magistrate Judge in a New York federal court recently had words of caution for social media-loving litigants and the lawyers who want to read their posts. In a decision refusing to penalize a plaintiff for supposedly deleting posts on her Facebook account, the Magistrate Judge in Thurmond v. Bowman, pending in the Western District of New York, discussed the relevance of social media accounts to claims for emotional distress and cautioned the plaintiff not to change her privacy settings.

The plaintiff in that case sued the owner and manager of a building in which, plaintiff alleges, she attempted to rent an apartment. According to plaintiff, once the manager learned that she had two young children, he refused to rent to her. Plaintiff sued for violations of the Fair Housing Act and the Civil Rights Act of 1968, claiming that, as a result of this refusal, she was homeless for a period of time, separated from her younger child, and suffered emotional damages.

Plaintiff had a very active Facebook account. Defendants claimed that plaintiff's social media posts could disprove her claims that she had suffered emotional harm and had been homeless and separated from her children because defendants refused to rent to her. According to a motion filed by defendants last May, asking the court to punish the plaintiff for destroying evidence, defendants' lawyers said that plaintiff's Facebook page had a gap where posts were missing for a period of about five months, starting a few days before plaintiff contacted the building manager about renting the apartment. One of defendants' lawyers also told the court that, a few days before filing the motion, he viewed plaintiff's Facebook page and saw posts disappearing. When the attorneys appeared in court to argue the motion, the Magistrate Judge said that plaintiff was prohibited from altering any social media posts while the parties tried to work out an order to preserve information.

The next month, defendants filed a second motion asking the court to punish the plaintiff, claiming that posts that they could see as of the date of the Magistrate Judge's instruction not to alter any posts had since been deleted. In response, plaintiff showed the court printouts of hundreds of posts from her Facebook account. Defendants' counsel claimed that several photographs of plaintiff's children that they had seen when they accessed her account months earlier were missing, but plaintiff's counsel said that this was probably due to accidental deletion when plaintiff and her lawyer were printing out the hundreds of Facebook posts.

The Magistrate Judge declined to sanction plaintiff for destroying evidence, in part because it appeared that most of the "missing" posts defendants were complaining about still existed. The court concluded that, most likely, what happened was that plaintiff's Facebook account had been publicly accessible until around the time defendants' lawyer tried to access it in May 2015, but that plaintiff then changed her privacy settings to make her posts viewable only to her Facebook friends, which removed her posts from public view, but did not delete them.

The Magistrate Judge rejected defendants' argument that the entirety of plaintiff's social media accounts were relevant to her claim for emotional distress damages. The Magistrate Judge said that, while social media postings might be relevant to contradict claims of physical or emotional injuries, defendants' argument that all of plaintiff's social media postings were relevant went too far, tipping her hat to research explaining that users of social media can "craft" the image they want to display to others, giving misleading impressions.

The Magistrate Judge also rejected defendants' argument that plaintiff's social media posts were relevant to claims that she was homeless and separated from her children. Plaintiff had not said that she was living on the streets, only that she did not have a permanent home and had been staying with family and friends. Plaintiff also had not claimed she had no access to her children, and presumably the children could have been photographed in places other than a home actually leased by plaintiff.

The decision, while a victory for the plaintiff, also contained words of warning for her. The Magistrate Judge explained that, by altering her Facebook account to hide her posts from public view, the plaintiff had violated the court's order not to alter her posts. Any similar conduct in the future, the Magistrate Judge warned, would likely result in sanctions.

More thoughts on the decision can be found here.

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