District of Maryland Applies Narrower Scope of Discovery of Social Media in “Garden Variety” Emotional Distress Cases

The District of Maryland has drawn a sharp distinction between discovery of social media posts in physical impairment cases, “garden variety” emotional distress cases, and “severe and specific” emotional distress cases.  See Blog, “District of Maryland Clarifies Rules Governing Discovery of Social Media.”

The scope of discovery of social media in physical impairment cases is broadest. Allen v. PPE Casino Resorts Maryland, LLC, __ F.Supp.3d ___, 2021 WL 2434404, *3 (D. Md. Jun. 14, 2021). In “cases alleging physical impairment, … social media posts documenting functionality beyond that alleged in the complaint would be clearly relevant….”

However, the Court expressed concern with the reliability of social media posts as evidence of one’s actual emotional state.

Further, the relationship of mere “routine expressions of mood” to one’s overall emotional well-being is tenuous, in that all of us can have “good days” and bad, be momentarily elated or sad, or even hold both emotional states at the same time (e.g., be upset at being sexually harassed at work while also happy at a close friend’s wedding). See Giacchetto, 293 F.R.D. at 115 (“The fact that an individual may express some degree of joy, happiness or sociability on certain occasions sheds little light on the issue of whether he or she is actually suffering emotional distress.”). This is exacerbated on social media where there can be a tendency to curate a certain image that might understate or overstate one’s true emotional state.

As such, the Court directed that:

“Plaintiffs [alleging “garden variety” emotional distress] may limit the scope of their response to specific references to serious, non-transient emotional distress including any such distress they claim to have suffered (or for which they received treatment) in connection with the incidents described in their Complaint. This would include, at a minimum, references to diagnosable conditions, visits to professionals for treatment of such distress, treatment regimens, and conversations regarding same. Plaintiffs’ response should include postings, photographs and communications that relate to a specific, significant event or chain of events that would be expected to result in meaningful emotional distress beyond transient changes in mood, such as the death of a loved one, marital difficulties, intractable financial difficulties, loss of employment, a serious illness or trauma, legal problems, and the like.”

It appears that, under Allen, posts showing only a “transient change of mood” are not discoverable in cases of “garden variety” emotional distress.

Where there is “severe and specific emotional distress” alleged, the allegations justify “a deeper social media dive….”  Id. at *3.  The Court wrote that, in those circumstances, the specific claims or diagnosis “lend the necessary precision to the responding party’s search so as to satisfy FRCP 34(b), and help filter the  morass of ambiguity….”

In determining the scope of discovery of social media, the Allen decision suggests that the parameters of the Complaint will be significant.