For employers defending discrimination claims in which the plaintiff claims emotional distress, social media accounts are potential treasure troves of evidence of claimant’s feelings, thoughts, and mental impressions. In Forman v. Henkin, New York State’s highest court held that the “threshold inquiry” for social media disclosure is whether the materials sought are “reasonably calculated to contain relevant information.”  The Court rejected the “heightened threshold” previously applied by lower courts.  That higher threshold had “conditioned discovery of material on the ‘private’ portion of a Facebook account on whether the party seeking disclosure demonstrated there was material in the ‘public’ portion that tended to contradict” plaintiff’s claims.

Although the Forman case did not involve an employment law case, we see no reason the same principles would not be applicable in the employment law litigation context.