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Court Orders Employee to Turn Over Social Media Posts

When an employee files a lawsuit against their employer, the employer often asks for discovery into the employee’s personal life.  While many of these discovery disputes have focused on subjects such as medical and financial records, recent battles have focused on social media accounts.  A recent decision from the United States District Court for the Eastern District of Michigan found that an employer does have the right to delve into Facebook and other social media accounts when an employee sues for discrimination and violations of the FMLA. Robinson  v. MGM Grand Detroit, LLC, No. 17-CV-13128 (E.D. Mich. 2019).

The case arose out of a lawsuit alleging that an employee of MGM Grand was terminated because of his race and disability and in retaliation for taking FMLA leave.  In discovery, MGM Grand sought discovery of electronically-stored information, which the employee refused to provide.  A federal magistrate ruled  that the employee’s Facebook, Google Photo, and Google location accounts were relevant to for the purpose of verifying whether he had a disability, his alleged abuse of FMLA leave, his alleged emotional distress, and his efforts to find new employment.  The magistrate ordered that the employee turn over his social media posts for the period of time that he was out of work.

The Robinson decision is instructive in that it shows that courts are increasingly willing to allow employers to delve into an employee’s social media accounts in the course of employment litigation. While open-ended fishing expeditions will generally not be allowed, a narrowly tailored request such as the one made by MGM Grand may very well be granted. In an era where employees publicize much of their personal lives on social media, these posts can be a treasure trove of information for employers defending against claims of discrimination and wrongful termination.

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